Friedman v. McHugh, 4340.

• Decision Date: 02 June 1948
• Docket Number: No. 4340.,4340.
• Citation: 168 F.2d 350
• Parties: FRIEDMAN v. McHUGH.
• Court: U.S. Court of Appeals — First Circuit

168 F.2d 350 (1948)

FRIEDMAN v. McHUGH.

No. 4340.

Circuit Court of Appeals, First Circuit.

June 2, 1948.

David S. Kunian, of Boston, Mass., for appellant.

J. Edward Keefe, Jr., of Boston, Mass., (Thomas C. O'Brien and John S. Stone, both of Boston, Mass., on the brief), for appellee.

Before DOBIE, MAHONEY, and WOODBURY, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal from a decision of the United States District Court for the District of Massachusetts. Martin McHugh was duly adjudicated a bankrupt, and, within six months after the adjudication, the bankrupt's son, John McHugh, while an employee of a railroad, was killed in an accident.

Agnes McHugh, the mother of John McHugh, was appointed Administratrix of John's estate. She obtained a settlement from the railroad, for the death of John, of $5,000. After the payment of counsel fees, $3,750 was left, which, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., went in equal parts ($1,875 for each) to Martin McHugh (the bankrupt), father of John, and Agnes McHugh, the mother of John, as the designated beneficiaries under the Liability Act.

As far as is material here, Section 70, sub. a(8) of the Bankruptcy Act, 11 U.S. C.A. § 110, sub. a(8), provides:

"All property which vests in the bankrupt within six months after bankruptcy by bequest, devise, or inheritance shall vest in the trustee and his successor and successors, if any, upon his or their appointment and qualification, as of the day when it vested in the bankrupt." Italics ours.

The District Court (overruling an order of the Referee in Bankruptcy) held that this sum of $1,875, received by the bankrupt on account of the death of his son, did not constitute property vesting in the bankrupt by "bequest, devise or inheritance," and, accordingly, need not be turned over by the bankrupt to his trustee in bankruptcy. The trustee has appealed to us.

We append the part that is pertinent here of the Federal Employers' Liability Act, 45 U.S.C.A. § 51:

"Every common carrier by railroad while engaging in commerce between any of the several States or Territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *."

The appellant here appears to concede (as we think he must) that he is not helped by the words (in the Bankruptcy Act) "bequest" or "devise;" for those terms both apply only to testate succession, under a will, the word "bequest" covering personalty and the word "devise" covering realty. Appellant, however, contends that the word "inheritance" in the Bankruptcy Act is broad enough to cover the accession by the bankrupt-father to the right, given by the Federal Employers' Liability Act, to damages against the railroad for the death of the bankrupt's son. We agree with the District Court that this contention is lacking in merit.

While the word "inheritance," when used in its strict technical sense, is limited to intestate succession of realty, we are quite willing to give this word (as used in the Bankruptcy Act) a broader meaning and to include personalty within its denotation. But, even under this broad meaning, the word "inheritance" (here) cannot apply to the right of a father, for the death of his son, arising out of the Federal Employers' Liability Act.

No case has been cited by counsel, and we have in our own independent investigations been unable to find a case, squarely in point on the precise question before us. However, the nature, the incidents and the attributes of the rights arising under the Federal Employers' Liability Act have been defined and described in numerous cases. We think, for our purposes, it is necessary to cite and to discuss only a few of these cases.

In Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 69, 33 S.Ct. 192, 195, 57 L.Ed. 417, Ann.Cas.1914C, 176, Mr. Justice Lurton stated that the Federal Employers' Liability Act (in keeping with its English prototype, Lord Campbell's Act) "has been construed not as operating as a continuance of any right of action which the injured person would have had but for his death, but as a new or independent cause of action for the purpose of compensating certain dependent members of the family for the deprivation, pecuniarily, resulting to them from his wrongful death." Interpreting Lord Campbell's Act, Coleridge, J., in Blake v. Midland Ry. Co., 18 Q.B. 93, 109, observed: "It will be evident that this act does not transfer this right of action to his (deceased) representative, but gives to the representative a totally new right of action, on different principles." And even clearer is the pronouncement of Lord Blackburn, in Seward v. The Vera Cruz, 10 App. Cases 59:

"A totally new action is given against the person who would have been responsible to the deceased if the deceased had lived; an action which * * * is new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of the widow, parent, or child, who under such circumstances suffers pecuniary loss."

See, also, Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686; Gulf, Colorado & Santa Fe Railway Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785; American Railroad Co. of Porto Rico v. Didricksen, 227 U.S. 145, 33 S.Ct. 224, 57 L.Ed. 456; American Railroad Co. of Porto Rico v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879.

While the suit under the Act is brought in the name of the personal representative, the personal representative really sues...