Docket No. 217 and 293.
UNITED STATES OF AMERICA
on behalf of
S. Stanwood Menken, Administrator of the Estate of Alice E. Tesson, Deceased, and William Aitkins.[sic ,] Charles Atkins, and Roy Aitkins,
Claimants,
v.
GERMANY.
Docket No. 544.
UNITED STATES OF AMERICA
on behalf of
Andrew C. McGowin, Administrator of the Estate of Frank B. Tesson, Deceased, and Emily Duncan Tesson, Bertha Angeline Montgomery, Lillian Josephine MaKinney, and John Williamson Tesson,
Claimants,
v.
GERMANY.
PARKER, Umpire, rendered the decision of the Commission.
These two cases, which have been considered together, are before the Umpire for decision on a certificate of the two National Commissioners[a] certifying their disagreement. A brief statement of the facts as disclosed by the record follows:
Docket No. 293 duplicates the claim made in Docket No. 217.
Frank B. Tesson, then 29 years of age, married Mrs. Alice Aitkins, then 40 years of age, in August, 1895. There was no issue of this marriage, but Mrs. Tesson had three children by her former marriage – William, Charles, and Roy Aitkins, then 21, 18, and 8 years of age respectively, all American nationals since birth.
Roy Aitkins was born and has ever remained a cripple, is unable to walk without the aid of a cane and then only with great difficulty, has no use of his left arm, is unable to perform any manual labor or do anything toward earning a livelihood. During most of the time between 1895 and 1914 this crippled son lived with and was cared for by Mrs. Tesson and her husband in St. Louis, Pittsburgh, Philadelphia, and New York, successively. During the years 1914 and 1915 and for short periods of previous years, when not residing with Mr. and Mrs. Tesson Roy lived with his brother William, Mr. and Mrs. Tesson paying his board and furnishing him money sufficient to provide wearing apparel and other necessities of life.
Both Mr. and Mrs. Tesson, American nationals, then 49 and 60 years of age respectively, were passengers on and went down with the Lusitania. They died intestate. At the time of his death Tesson was assistant manager of the shoe department of John Wanamaker, New York, and received a salary of $10,000 per annum and in addition yearly bonuses of something in excess of $2,000. He was physically strong, of exemplary habits, frugal and industrious, and had good prospect for advancement.
There survived Mrs. Tesson her three children by her first marriage, viz.:- William Aitkins, who testified in October, 1923, that he is a laborer with a wife and nine children ranging in age from 16 months to 27 years; Charles Aitkins, who testified in October, 1923, that he is a laborer with a wife and one child, a daughter 19 years of age; and the unmarried crippled son, Roy.
There survived Mr. Tesson his mother, Emily Duncan Tesson, now 85 years of age, and a brother and two married sisters, all of whom are mature and have established homes of their own, all of these claimants being American nationals at the time of and ever since his death.
Each of the three sons of Mrs. Tesson received from her separate esatate approximately $1,800.
Mr. Tesson’s estate inventoried at approximately $11,500. He carried three policies of insurance on his life for $5,000 each payable “to his wife, Alice E. Tesson, if living, if not then to the Assured’s executors, administrators or assigns”. The proceeds of these policies were claimed by the administrator of Mrs. Tesson’s estate. After litigation, the highest court of the State of New York decided that it must be assumed that Tesson and his wife died simultaneously, and hence by the terms of the policies they were payable to the administrator of Mr. Tesson’s estate (McGowin v. Menken, 223 N.Y. 509). That estate, including the proceeds of the life-insurance policies mentioned, after paying all expenses of administration, was of the net value of $22,828.80, which was distributed in four equal parts to Tesson’s mother, brother, and two sisters, none of whom, according to a stipulation filed in the life-insurance litigation, had been dependent upon Tesson for support. There is, however, in the record an affidavit of Tesson’s mother made in December, 1923, to the effect that her deceased son Frank subsequent to the year 1909 contributed approximately $500 per annum toward her maintenance. She had never lived with her son, but at the time of his death she was and long had been residing with her daughter Mrs. MaKinney, of Alton, Illinois. It is evident from the record that if either Tesson or his wife had lived her crippled son Roy would probably have continued to receive small contributions of not less that $25 per month for his maintenance and support. Such a remittance was made by Tesson to William Atkins for the use of Roy on April 30, 1915, the day before taking passage on the Lusitania.
There was lost with Mrs. Tesson on the Lusitania personal property of the value of $2,325.00. No claim is put forward by the administrator of the estate of Frank B. Tesson for property lost with him.
The awards which this Commission is empowered to make in death cases are based, not on the value of the life lost, but on the losses resulting to the claimants from the death, in so far only as such losses are susceptible of being measured by pecuniary standards. Bearing this in mind and applying the rules announced in the Lusitania Opinion and in the other decisions of this Commission to the facts as disclosed by the records, the Commission decrees that under the Treaty of Berlin of August 25, 1921, and in accordance with its terms the Government of Germany is obligated to pay to the Government of the United States on behalf of (1) Roy Aitkins the sum of five thousand dollars ($5,000.00) with interest thereon at the rate of five per cent per annum from November 1, 1923, (2) S. Stanwood Menken, Administrator of the Estate of Alice E. Tesson, deceased, the sum of two thousand three hundred twenty-five dollars ($2,325.00) with interest thereon at the rate of five per cent per annum from May 7, 1915, (3) Emily Duncan Tesson the sum of three thousand dollars ($3,000.00) with interest thereon at the rate of five per cent per annum from November 1, 1923; and that the Government of Germany is not obligated to pay any amount on behalf of the other claimants in these two cases.
Done at Washington February 21, 1924.
EDWIN B. PARKER
Umpire.
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[a] Dated February 14, 1924.
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