Riley v. Southern Transportation Co.

• Decision Date: 24 May 1950
• Citation: 90 F. Supp. 842
• Parties: RILEY v. SOUTHERN TRANSPORTATION CO.
• Court: U.S. District Court — Southern District of New York

90 F. Supp. 842

RILEY v. SOUTHERN TRANSPORTATION CO.

United States District Court S. D. New York.

May 24, 1950.

Solomon Goodman, New York City, for plaintiff.

Nelson, Healy, Baillie & Burke, New York City (Allan A. Baillie, New York City, of counsel), for defendant.

IRVING R. KAUFMAN, District Judge.

Plaintiff, in its complaint in this action filed June 17, 1949, alleges two causes of action, the first under the Jones Act, 46 U. S.C.A. § 688, and the second for war risk insurance for loss of life and personal effects. Defendant moves for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A., upon the following grounds:

(a) That plaintiff's first cause of action for the wrongful death of her seaman intestate is barred by the three year limitation provision of the Federal Employers' Liability Act, 45 U.S.C.A. § 56, as incorporated into the Jones Act, and

(b) That plaintiff's second cause of action raises no triable issue of fact.

Plaintiff's intestate, it is alleged, was an oiler on the steamtug Menominee, owned and operated by the defendant, which was sunk on March 31, 1942 off the Virginia coast by the shell fire of an enemy submarine. There were but two survivors of the sinking, and plaintiff's intestate was not one of them.

In regard to the motion for summary judgment on the first cause of action, the limitation provision provides that: "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." Plaintiff attempts to avoid this definite bar to her action by alleging that her intestate "disappeared" at the time of the sinking; that she had to wait seven years to pass before he could be presumed dead, and that she brought suit as soon as was possible after she qualified as administratrix of his estate upon declaration of her intestate's death by the Surrogate's Court of Warren County, New York State, on June 7, 1949. This contention is not original, but was raised and disallowed in a similar case, Philpott v. Vesta Coal Co., D.C.W.D.Pa.1937, 21 F.Supp. 37. That decision was based on a holding of the Supreme Court that a cause of action for wrongful death under the Federal Employers' Liability Act accrues at the time of death and not at the time of appointment of the personal representative. Reading Co. v. Koons, 1926, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835. This, of course, applies as well to a suit under the Jones Act. O'Neill v. Cunard White Star Limited, D.C.S.D.N.Y.1946, 69 F.Supp. 943.

Plaintiff alleges that she could not state that her intestate was dead until the declaration of the Surrogate's Court, which required an absence of seven years. This assertion not only is not well taken but it denies the causal relation between defendant's alleged negligence and the wrongful death necessary for plaintiff to succeed on her first cause of action.

The seven year waiting period necessary is only required where there is an unexplained absence. If the facts surrounding the disappearance are sufficient to reasonably indicate that the person is dead, letters of administration could be applied for immediately and obtained. Surrogate's Court Act, New York, Sec. 119; see 2 Warren's Heaton on Surrogate's Courts, pp. 168-172 (Sixth Edition). It appears from the pleadings and affidavit in support of the motion that plaintiff was aware of her husband's death in 1942, and nothing is alleged by the plaintiff to justify her delay in applying for letters or in bringing suit. As the Supreme Court said in the case of Reading Co. v. Koons, supra: "The language of the statute evidences an intention to set a definite limit to the period within which an action may be brought under it without reference to the exigencies which arise...