Larry v. Chicago, B. & QR Co.

• Decision Date: 05 December 1947
• Docket Number: No. 5513.,5513.
• Citation: 74 F. Supp. 798
• Court: U.S. District Court — Eastern District of Missouri
• Parties: LARRY v. CHICAGO, B. & Q. R. CO.

74 F. Supp. 798

LARRY v. CHICAGO, B. & Q. R. CO.

No. 5513.

District Court, E. D. Missouri, E. D.

December 5, 1947.

Cox & Cox and Harvey B. Cox, all of St. Louis, Mo., and Hugh F. Elliott, of Clayton, Mo., for plaintiff.

Wilder Lucas and Hugh H. Sullivan, both of St. Louis, Mo., for defendant.

HULEN, District Judge.

Plaintiff's suit, based on the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq., is brought by her as administratrix of the estate of Howard W. Larry. The complaint, after alleging that the deceased met his death under circumstances coming within the purview of the Act, recites that deceased "left surviving him as his sole heir at law and beneficiary, Adeline Larry, his widow", and the same person as plaintiff, who is now suing in a representative capacity. Damages in the sum of $100,000 are prayed for. Defendant alleges as a defense that prior to the filing of this action defendant paid Adeline Larry the sum of $15,000 in full settlement and release of all claims which Adeline Larry had as heir at law of the deceased Howard W. Larry, growing out of his death while employed by the defendant. Plaintiff would strike from the answer the plea of settlement and such a motion is before the Court for ruling.

It is plaintiff's position that under the Act no right of action is given in case of death of an employee to his widow but that such right of action reposes exclusively in the "personal representative" of the deceased and that the personal representative alone can assert such right of action, and that therefore only the personal representative can settle and discharge the right of action.

The statute upon which plaintiff bases her cause of action, as well as the motion to strike, reads as follows: "Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, 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; and, if none, then of the next of kin dependent upon such employee, 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, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. * * *" 45 U.S.C.A. § 51. (Emphasis added.)

We have read the cases cited by plaintiff in support of her position. They are cases holding that personal representative means executor or administrator (Brown v. Boston & M. R. Co., 283 Mass. 192, 186 N.E. 59); that the Act gives an action for damages to the person injured, or in case of his death to his or her personal representative (American R. Co. of Porto Rico v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L. Ed. 879); that in case of death of a husband the surviving widow cannot personally maintain suit under the Act (St. Louis & San Francisco R. Co. v. Seale, 229 U.S. 156, loc. cit. 162, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas. 1914C, 156); that part of the beneficiaries in whose behalf a personal representative may maintain the action cannot effect a binding settlement of release (Pittsburgh, Cincinnati, Chicago & St. Louis R. Co. v. Collard's Administrator, 170 Ky. 239, 185 S.W. 1108, L.R.A.1918E, 273. The question raised by plaintiff's motion is not of this character. Here we have a plaintiff who is the widow of the deceased, and his sole heir, suing as an administratrix for damages under the Act and it is alleged in defense of the action that the widow as such heir settled her claim in full. This is not a case in which the right of the administratrix or personal representative to maintain the suit is challenged. We are not presented with a question of the right of a widow to maintain a case for death under the statute in her individual name. We are not presented with a case where a portion of the beneficiaries have attempted to settle with the railroad for damages based on the Act. Defendant pleads a full settlement with the sole beneficiary. Plaintiff as administratrix brings this suit for the benefit of herself individually. Technically, in her representative capacity, she is trustee in this case for herself solely and individually. (See Chicago B. & Q. R. v. Wells-Dickey Trust Co., 275 U.S. 161, 48 S.Ct. 73, 72 L.Ed. 216, 59 A.L.R. 758.) To hold under these circumstances that plaintiff as an individual, sole heir and widow of the deceased could make a settlement with the defendant and then institute, under the garb of her personal representative, an action for her sole benefit against the same defendant for the same damages which were settled by her, would in our judgment work a grave injustice. Such a result is not contemplated by the law in our opinion. If the case of City of Louisville v. Hart's Administrator, 143 Ky. 171, 136 S.W. 212, 35 L.R.A.,N.S., 207, is suggested as sustaining plaintiff's position, then we refuse to follow that case. Excepting the City of Louisville case, which is clearly distinguishable on its facts, and rulings by the Supreme Court of Indiana (Yelton v. Evansville & I. R. Co., 134 Ind. 414, 33 N.E. 629, 21 L.R.A. 158; Cleveland C. C. & St. L. Ry. Co. v....