Carson v. Gore-Meenan Co.

• Decision Date: 09 February 1916
• Docket Number: 755.
• Citation: 229 F. 765
• Court: U.S. District Court — District of Connecticut
• Parties: CARSON v. GORE-MEENAN CO.

229 F. 765

CARSON v. GORE-MEENAN CO.

No. 755.

United States District Court, D. Connecticut.

February 9, 1916

Robert J. Woodruff, of New Haven, Conn., for plaintiff.

Seymour C. Loomis, of New Haven, Conn., for defendant.

THOMAS District Judge.

After the decision sustaining the demurrer to the second defense of the defendant's answer, the defendant, with the permission of the court, amended its second and third defenses. These defenses, as amended, aver that prior to the appointment of the plaintiff as administratrix, and before the bringing of the action, the decedent's widow, who is also the administratrix, for a valuable consideration released and settled and gave a full accord and satisfaction of all claims arising against the defendant by reason of the decedent's death, and for a valuable consideration waived and released all claims which might arise against the defendant because of any negligence of the defendant; that the decedent left no lineal descendants, and left surviving him a widow, who is the sole beneficiary of any sum which may be recovered in this action, and who, as administratrix, is prosecuting this action. A demurrer has been filed challenging the sufficiency of these defenses. Elaborate briefs have been presented and the questions involved have been exhaustively argued. In my opinion the decision sustaining the original demurrer should stand.

The vice of the defendant's argument is that it erroneously assumes that the beneficiaries' right in the judgment which may be recovered in an action upon section 1094 of the General Statutes of Connecticut, Revision 1902, vested before the judgment. This contention is not sound. The beneficiaries cannot be determined until the judgment is rendered, and the court of probate has nothing to do, except to determine who are the beneficiaries on the day the judgment is rendered under section 399 of the General Statutes of Connecticut Revision 1902, as it was prior to the amendment of 1915; that is to say, if the widow of a decedent, in an action brought under section 1094, who had survived him, should die before judgment, the share which she would have received, had she lived until judgment, would lapse, and would then be distributed to the other heirs entitled to share in the judgment, and so, if the lineal descendants surviving him should die before the judgment, their share would accordingly lapse and pass to the widow. Section 399 clearly does not contemplate a distribution to personal representatives, and such a construction of the statute is manifestly opposed to both its letter and spirit. The purpose of the Connecticut statute, as has been repeatedly held, is to provide for the survival of the decedent's right of action for the compensation of those dependent upon him, to be determined as of the date of the judgment, and, had it contemplated a distribution to legal representatives, it would have said so in so many words, as do sections 396 and 398 of the General Statutes of Connecticut, Revision of 1902-- the general statutes of distribution of the State. 'Expressio unius est exclusio alterius.' Whether the amendment of 1915 has changed the law in this respect it is not now necessary to decide.

Moreover, there can be no vested right in a claim for damages for a tort, not connected with or growing out of a contractual relation until judgment is rendered. Such a claim does not pass to the administrator as assets, save by virtue of a statute, does not descend to the heirs, and constitutes no basis for the action of any legal principle until judgment is rendered, and up to that time the claim is a mere expectancy, or an inchoate right, not assignable, not liable to attachment, and not a debt. Holcomb v. Winchester, 52 Conn. 447, 52 Am.Rep. 609; Brown & Adams v. United Button Co., 149 F. 48, 79 C.C.A. 70, 8 L.R.A. (N.S.) 961, 9 Ann.Cas. 445; In re New York Tunnel Co., 159 F. 688, 86 C.C.A. 556 (C.C.A. 2d Cir.); In re Ostrom (D.C.) 185 F. 988.

The trial court has absolutely nothing to do with the distribution under the Connecticut statute, and evidence of the number and condition of the beneficiaries is inadmissible as bearing upon the question of damages. McElligott v. Randolph, 61 Conn. 159, 22 A. 1094, 29 Am.St.Rep. 181; Goodsell v. Hartford & New Haven R.R. Co., 33 Conn. 51. And the only circumstances under which such evidence could by any possibility be admitted would be the absolute lack of any beneficiaries or heirs, in which event the action would fail.

The precedents cited by counsel for the defendant in support of its contention arise in jurisdictions where the statutes are substantially different from the Connecticut statute, and where the existence of the cause of action is not dependent upon the appointment of an administrator, but grows out of the negligent death; the action being for damages sustained by designated beneficiaries on account of such negligent death, and which comes into existence by reason of the death, and which is not cumulative, nor the survival, continuation, or enlargement of any existing right, but the substitution of a new right and remedy by way of exception. It is possible in such cases a right of action might vest in the designated beneficiaries when the action accrues, although the administrator as a trustee is a necessary party, but the Connecticut statutes clearly exclude any such construction.

As already indicated, the whole tenor of the decisions of the Connecticut Supreme Court of Errors is to make the action given by section 1094 a purely survival one for the compensation of those dependent upon the decedent, free from claims of creditors, such beneficiaries to be determined under section 399 as of the date of the judgment.

This view of the law is borne out by Blagge v. Balch, Brooks v Codman, and Foote v. Women's Board of Missions, cases arising under the act of Congress relating to the French spoliation claims and reported in...