Betts v. Southern Ry. Co.

• Decision Date: 11 June 1934
• Docket Number: No. 3596.,3596.
• Citation: 71 F.2d 787
• Parties: BETTS et al. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

71 F.2d 787 (1934)

BETTS et al. v. SOUTHERN RY. CO.

No. 3596.

Circuit Court of Appeals, Fourth Circuit.

June 11, 1934.

Murray Allen, of Raleigh, N. C. (Thomas Creekmore and Thos. W. Ruffin, both of Raleigh, N. C., on the brief), for appellants.

Richard C. Kelly, of Greensboro, N. C. (Willis Smith, of Raleigh N. C., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment dismissing an action for wrongful death, brought in the North Carolina courts under the Virginia wrongful death statute. The judgment was entered upon an answer in the nature of a plea in abatement, the allegations of which were admitted, setting up the acceptance of an award by the widow of decedent under the North Carolina Workmen's Compensation Act in bar of the right of plaintiff to maintain the action further. The facts, as to which there is no dispute, are as follows:

On April 4, 1932, one E. G. Betts, a resident of North Carolina and an employee of the Lafayette Transit Company, a corporation of that state, was killed by a train of the Southern Railway Company at a crossing near the city of Danville in the state of Virginia while driving a truck in the course of his employment. On October 15, 1932, this action was instituted by his administrator against the railway company to recover damages on account of his death. The action was instituted in the superior court of Wake county, N. C., but was subsequently removed into the federal court. On December 10th the defendant filed answer denying negligence and pleading contributory negligence on the part of decedent in bar of recovery.

While the action was pending, the widow of decedent, having applied for compensation for the death of her husband under the North Carolina Workmen's Compensation Act, was awarded compensation in the sum of $10.80 per week for 300 weeks and certain costs and expenses. This award was confirmed by the full commission on April 4, 1933; but in the meantime, to wit, on March 22, 1933, the New Amsterdam Casualty Company, the insurance carrier against whom the compensation had been awarded, filed in the wrongful death action pending against the railway company in the federal court a notice that the award had been made; that it was making the payments awarded; that it was subrogated to the right of action growing out of the death of decedent; and that it elected to prosecute suit in the name of the administrator against the railway company for damages on account of his death.

On August 10, 1933, defendant filed a plea in abatement by way of amendment to its answer pursuant to the North Carolina practice, setting up the acceptance of the award by the widow of decedent, and averring that such acceptance was a bar to the further prosecution of the action, as the widow was the sole beneficiary under the Virginia wrongful death statute (Code Va. 1930, § 5786 et seq.), and the action had not been instituted for the benefit of the employer or insurance carrier and could not be maintained for the benefit of either. The District Judge sustained this plea, and, from judgment thereon dismissing the action, the plaintiff administrator has appealed.

The question of conflict of laws involved is not without difficulty; but from certain rules that are well settled we think that the rule properly applicable can be deduced. In the first place, there is no question but that all matters pertaining to the substantive right of recovery under a wrongful death statute, including the right to recover, the nature of the right, and the party in whom it is vested, are governed by the law of the state where the injury resulting in death occurred. Ormsby v. Chase, 290 U. S. 387, 54 S. Ct. 211, 78 L. Ed. 378; 8 R. C. L. 737. In the second place, it is equally clear that the rights of employer, employee, and insurance carrier under a workmen's compensation statute are governed by the law of the state of the statute. Bradford Electric Co. v. Clapper, 286 U. S. 145, 52 S. Ct. 571, 76 L. Ed. 1026, 82 A. L. R. 696. The acceptance of compensation under the law of one state cannot affect the right to pursue a remedy against a third person under the wrongful death statute of another, unless there is something in the law of the latter which so provides. And, on the other hand, the law of the latter cannot affect the right to compensation under the law of the state of employment unless the law of that state so provides.

The question here relates to the assignment of the right of recovery against a third person under the wrongful death statute of one state as the result of acceptance by the beneficiary of compensation from the employer under the compensation act of another. And, in the absence of any provision to the contrary in the law of the state of the injury, we think that such assignment is governed by the law under which the compensation is accepted. If, as here, the person entitled to the recovery under the law of the state of the injury is the person to whom compensation is paid, no complication results; for in such case the beneficiary, by accepting the compensation, impliedly agrees to the assignment which the law directs, and is estopped from disputing the rights of the person claiming under the assignment. If the beneficiary under the death statute is a different person from the one entitled to compensation under the compensation act, there is likewise no complication; for the right of the beneficiary to recover could not be affected by compensation paid some one else under the law of another state, and the right of the person entitled to compensation could not be affected by the fact that the law of another state gave a right of recovery to some one else. Here the person for whose benefit the action is given under the Virginia statute is the person entitled to compensation under the North Carolina statute; and the acceptance of compensation under the latter statute, upon the principles above stated, results in the assignment thereunder of the beneficiary's right in the recovery under the Virginia statute unless there is something in the law of Virginia which forbids the assignment or takes away the right of recovery because of the acceptance of compensation under the law of another state.

There is nothing in the law of Virginia which affects the right of action. The defendant relies upon section 12 of the Workmen's Compensation Act of Virginia (Acts Va. 1918, c. 400), as amended by the Act of 1930 (c. 158), the pertinent portion of which is as follows: "* * * Provided, however, that where such employee, * * * may have a right to recover damages for such injury, * * * from any person or persons other than such employer, he may institute an action at law against such third person or persons before an award is made under this act, and prosecute the same to its final determination, but * * * the acceptance of an award hereunder, * * * shall be a bar to proceeding further with the alternate remedy. * * *"

The recent case of Corrigan v. Stormont, 160 Va. 727, 170 S. E. 16, relied upon by defendant, interprets this statute as requiring that an...