Flynn v. New York, N.H. & H.R. Co.

• Decision Date: 31 March 1930
• Citation: 149 A. 682,111 Conn. 196
• Parties: FLYNN v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

149 A. 682

111 Conn. 196

FLYNN v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

Action by Edward F. Flynn, executor, against the New York, New Haven & Hartford Railroad Company to recover damages for injury alleged to have been caused by the negligence of the defendant. Upon a demurrer to the complaint, which the court sustained, plaintiff having neglected and refused to plead further, judgment was rendered for defendant, and plaintiff appealed.

No error.

William A. Bree and William F. Geenty, both of New Haven, for appellant.

Edward R. Brumley, of New York City, and Fleming James, Jr., of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J.

The complaint alleges that the defendant was on December 4, 1923 a common carrier engaged in the business of transportation between states of the United States; that on this day its employee, Edward L. Flynn, was injured through defendant's negligence, to which he did not contribute, and in consequence died on September 1, 1928 leaving surviving him his widow and five daughters; and that the plaintiff is the duly qualified executor under the will of the decedent.

The defendant demurred to the complaint which was dated May 15, 1929, upon the principal ground, stated in several forms, that the injury to the decedent having occurred on December 4, 1923, and death having occurred on September 1, 1928, the plaintiff's action, which was brought to recover for pecuniary loss to the widow and children of the decedent, under the Federal Employers' Liability Act of April 22, 1908, c. 149, § 6, as amended by the Act of April 5, 1910, c. 143 (45 USCA § 56), is barred, since by it no cause of action ever accrued to the plaintiff. The reasons of appeal pursued by the appellant involve the single question raised by the demurrer which we have stated.

The act of 1908, which we set out in the footnote^[1], creates " two distinct and independent" causes of action against the carrier, one to the injured employee for the wrongful injury to him, the other in behalf of designated relatives for the pecuniary loss resulting to them by reason of the wrongful death. The latter action includes no damages which the decedent might have recovered had he survived, but only the pecuniary damages to the relatives caused by his death which " can be measured by some standard."

Each action rests upon " the common foundation of a wrongful injury," but each is governed by " altogether different principles." These have been so definitely determined by the Supreme Court of the United States that a reference to some of these decisions is all that is now required. Michigan Cent. R. R. v. Vreeland, 227 U.S. 59, 68, 70, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas. 1914C, 176; Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L.Ed. 906. We had a similar action under this act before us in Farley v. New York, N.H. & H. R. Co., 87 Conn. 328, 335, 87 A. 990, 992. It was decided in July, 1913, while Mr. Justice Lurton's opinion in Michigan Cent. R. R. Co. v. Vreeland, supra, upon which we relied, was handed down in December, 1912.

Our opinion construes this act as applied to the second of these causes of action in this manner: " The statute under which the action was brought, in so far as it provides for recovery for death, follows the lines of Lord Campbell's act in England, and in its distinguishing features is identical with that Act. Mich. Cent. R. Co. v. Vreeland, supra. It creates a right of action where there was none at common law, and one which is entirely independent of any which the deceased may have had in life, and which comes originally to the personal representative by the operation of the statute, and not by the process of survival. It is one for the exclusive benefit of certain specified persons, and the damages recoverable are such as result to them by reason of their having been deprived, through the wrongful death of the deceased, of a reasonable expectation of pecuniary benefits attendant upon his continuance in life." The action in behalf of the beneficiaries cannot be maintained, unless the decedent immediately before his death could have maintained his action for injuries suffered by the negligence of the defendant, since the foundation of this action is the existence of this injury. The authorities generally, as well as in this jurisdiction, so hold. Mich. Cent. R. R. Co. v. Vreeland, supra, at page 70 of 227 U.S. 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas. 1914C, 176; Mellon v. Goodyear, 277 U.S. 335, 341, 48 S.Ct. 541, 544, 72 L.Ed. 906, and cases cited in each opinion; Kling v. Torello, 87 Conn. 301, 87 A. 987, 46 L.R.A. (N. S.) 930.

It follows from this that a settlement of the claim of the injured person for his wrongful injury, in the absence of fraud or mistake, will bar an action in behalf of his relatives under this statute for his death. The Supreme Court reiterated its previously expressed view upon this point in these words: " By the overwhelming weight of judicial authority, where a statute of the nature of Lord Campbell's Act in effect gives a right to recover damages for the benefit of dependents, the remedy depends upon the existence in the decedent at the time of his death of a right of action to recover for such injury. A settlement by the wrongdoer with the injured person, in the absence of fraud or mistake, precludes any remedy by the personal representative based upon the same wrongful act. * * * The cases supporting this view, from courts of last resort in twenty-one states, Canada and England, are collected in a note following the first opinion of the Supreme Court of Kansas in the present cause, reported in 39 A.L.R. 579." Mellon v. Goodyear, 277 U.S. 335, at page 344, 48 S.Ct. 541, 544, 72 L.Ed. 906. The same rule, under this act, is applicable in case the decedent in his lifetime has recovered judgment for his injury and received satisfaction thereof. Seaboard Air Line Ry. Co. v. Oliver (C. C. A.) 261 F. 1.

" Nothing is better settled than that, at common law, the right of action for an injury to the person is extinguished by the death of the party injured." Michigan Cent. R. Co v. Vreeland, 227 U.S. at page 67, 33 S.Ct. 192, 195, 57 L.Ed. 417, Ann.Cas. 1914C, 176. It was also held in this case that the act of 1908 did not provide for a survival of a right of action, but that this was extinguished by death. The act was amended April 5, 1910, 36 Stat. 291, c. 143, by adding to it section 9 (45 USCA § 59): " That any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the...