Franzen v. EI Du Pont De Nemours & Co.

• Decision Date: 15 January 1941
• Docket Number: No. 1070.,1070.
• Citation: 36 F. Supp. 375
• Parties: FRANZEN v. E. I. DU PONT DE NEMOURS & CO., Inc.
• Court: U.S. District Court — District of New Jersey

36 F. Supp. 375

FRANZEN v. E. I. DU PONT DE NEMOURS & CO., Inc.

No. 1070.

District Court, D. New Jersey.

January 15, 1941.

Abraham J. Slurzberg, of Jersey City, N. J., for plaintiff.

Katzenbach, Gildea & Rudner, and Louis Rudner, all of Trenton, N. J., for defendant.

FORMAN, District Judge.

The complaint in the above case was filed on August 2, 1940. It alleges that plaintiff is the widow of George Franzen who was fatally injured on August 6, 1939, while employed by the defendant at Baton Rouge, Louisiana. Compensation is sought in this court under the Employers' Liability Act of Louisiana. It is asserted that by virtue of the death of the decedent the plaintiff as his sole dependent is entitled under the Louisiana Act to weekly payments of $14.30 for a period of 300 weeks from August 7, 1939.

The defendant moves to dismiss on the following grounds:

1. The complaint does not show that $3,000 is involved.

2. Under the Employers' Liability Act of Louisiana the courts of that state alone have jurisdiction of actions thereunder.

3. The complaint under the Louisiana Act should have been verified.

Under the Employers' Liability Act of Louisiana, Act No. 20 of 1914, as amended, Act No. 242 of 1928, it is provided that:

"For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee * * *, a weekly sum as hereinafter provided, for a period of three hundred weeks. * * *" Sec. 8(2).

"The marriage or death of any dependent shall terminate payments to such dependent, but shall not affect payments allowed other dependents. * * *" Sec. 8(2) (F).

It is to be observed that the amount demanded for a period of 300 weeks would amount to $4,290. On the other hand if the amount of recovery should be limited to the amount due at the filing of the complaint plaintiff would be entitled to a judgment for the sum of $729.30. In addition, it should be noted that under the above quoted statute marriage or death of the beneficiary terminates compensation payments.

The cases of Wright v. Mutual Life Ins. Co. of New York, 5 Cir., 19 F.2d 117 and Shabotzky v. Massachusetts Mutual Life Ins. Co., D.C., 21 F.Supp. 166, relied upon by defendant are distinguishable because only accrued compensation benefits in amounts less than $3,000 were demanded. Defendant's citation, La Vecchia v. Connecticut Mutual Life Ins. Co., D.C., 1 F. Supp. 588, is more analogous because there the plaintiff sought the accrued monthly installment as well as "monthly installments of $50 thereafter". These payments were to continue so long as plaintiff was disabled. The jurisdictional, monetary prerequisite, if based upon the life expectancy of plaintiff, would be present. The court, however, concluded that the complaint showed that in no event could plaintiff have judgment for the whole period of his life expectancy, because on the face of the complaint the total and permanent disability clause obligated the defendant to pay installments only during continuance of disability. Hence, it concluded that $3,000 was not involved.

In the State of Louisiana a judgment for weekly payments under the Liability Act until death or remarriage of the plaintiff is erroneous. Laurent v. Dendinger, 13 La.App. 234, 126 So. 600, 127 So. 755. A proper judgment is for the payment of these benefits for the full period of 300 weeks. Smith v. Samuel T. Gately Marble & Granite Works, La.App., 157 So. 802. And the fact that a condition subsequent — marriage or death — will operate as a forfeiture of future benefits, and, hence, lessen the amount ultimately to be paid, is immaterial. Brotherhood of Locomotive Firemen v. Pinkston, 293 U.S. 96, 55 S.Ct. 1, 79 L.Ed. 219.

We conclude that since the complaint demands compensation at the weekly rate of $14.30 for a period of 300 weeks, or a total sum of $4,290, that the jurisdictional, monetary prerequisite is present, and this notwithstanding the fact that these payments are conditioned upon the life and widowhood of the beneficiary.

The next contention is that the courts of Louisiana have exclusive jurisdiction over actions under its Liability Act. This argument is based upon the premise that the right of action and the remedy therefor are so inseparably united that the right cannot be enforced except in the manner and before the tribunal designated by the act.

Defendant submits the following cases wherein the courts of one state refused to apply the compensation acts of other states: Johnson v. Employers Liability Assur. Corp., Tex.Civ.App., 99 S.W.2d 979; Federal Underwriters Exchange v. Doyle, Tex. Civ.App., 110 S.W.2d 618 (Suits brought under Louisiana Act dismissed in Texas); Davis v. Swift & Co., 175 Tenn. 210, 133 S.W.2d 483 (Suit brought under Florida Act dismissed in Tennessee); Logan v. Missouri Valley Bridge & Iron Co., 157 Ark. 528, 249 S.W. 21 (Arkansas declined to apply Oklahoma statute); Mosely v. Empire Gas & Fuel Co., 313 Mo. 225, 281 S.W. 762, 45 A.L.R. 1223; Harbis v. Cudahy Packing Co., 211 Mo.App. 188, 241 S. W. 960 (Suits brought under Kansas Act dismissed in Missouri); Resigno v. F. Jarka Co., 221 App.Div. 214, 223 N.Y.S. 5; Verdicchio v. McNab & Harlin Mfg. Co., 178 App.Div. 48, 164 N.Y.S. 290 (Suits brought under New Jersey Act dismissed in New York).

The Supreme Court has held that a state cannot create a transitory cause of action, and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction, Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997, L.R.A.1916 D, 685 (Suit may be brought in Georgia under Alabama personal injury statute); Atchison, Topeka & Sante Fe Ry. Co. v. Sowers, 213 U.S. 55, 29 S.Ct. 397, 53 L.Ed. 695 (Suit may be brought in Texas under personal injury statute of the Territory of New Mexico). Incidentally, it should be noted that the courts of New York in the case of Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 125 N.E. 675, held that suit may be brought in New York under the New Jersey Compensation Act, this conclusion being contrary to the holdings in the cases of Resigno v. F. Jarka Co. and Verdicchio v. McNab & Harlin Mfg. Co., supra.

Johnson v. Employers Liability Assur. Corp., supra, followed in Federal Underwriters Exchange v. Doyle, supra, is the only case we have found in which a state (Texas) has declined to permit a suit under the Louisiana Compensation Act, and therein particular emphasis was given to the policy of the State of Texas.

Suits under the Louisiana Act have been permitted in the Federal courts, United Dredging Co. v. Lindberg, 5 Cir., 18 F.2d 453, certiorari denied 274 U.S. 759, 47 S.Ct. 769, 71 L.Ed. 1337 (Suit under Louisiana Act removed to federal court from Texas state court and permitted); Texas Pipe Line Co. v. Ware, 8 Cir., 15 F.2d 171, certiorari denied 273 U.S. 742, 47 S.Ct. 335, 71 L.Ed. 869 (Suit under Louisiana Act removed to federal court from Arkansas state court and permitted); McLaughlin v. Western Union Telegraph...