Schlavick v. Manhattan Brewing Co.

• Decision Date: 04 April 1952
• Docket Number: No. 51 C 437.,51 C 437.
• Citation: 103 F. Supp. 744
• Parties: SCHLAVICK v. MANHATTAN BREWING CO.
• Court: U.S. District Court — Northern District of Illinois

103 F. Supp. 744

SCHLAVICK v. MANHATTAN BREWING CO.

No. 51 C 437.

United States District Court N. D. Illinois, E. D.

April 4, 1952.

Lockyear & Lockyear, Evansville, Ind., Eckhart, Klein, McSwain & Campbell, Chicago, Ill., for plaintiff.

Allen H. Schultz and Schultz & Schwartz, all of Chicago, Ill., for defendant.

PERRY, District Judge.

This is an action for damages for the wrongful death of Walter Schlavick, caused by the alleged negligence of the defendant. It is brought under the Indiana wrongful death statute. Burns' Indiana Statutes, § 2-404.

Since February 25, 1951, the plaintiff has been the administratrix of the estate of her decedent husband by virtue of her appointment and qualification in the Probate Court of Vanderburgh County, Indiana. The defendant is an Illinois corporation and has its principal office and place of business at Chicago, Illinois. Plaintiff seeks to recover fifteen thousand dollars. Federal jurisdiction is based upon diversity of citizenship 28 U.S.C.A. § 1332.

On February 11, 1945, the decedent suffered serious injuries when he proceeded to service a refrigerated railroad car, pursuant to his duties as an employee of the Fruit Growers Express Company at Evansville, Indiana. The plaintiff alleges that the injuries were proximately caused by the defendant's negligent loading of this car at Chicago, Illinois, that these injuries subsequently caused the decedent's death on April 11, 1950.

The affidavits and exhibits, which have been filed to support the defendant's motion for summary judgment, reflect that the decedent applied for compensation under the Indiana Workmen's Compensation Act of 1929, as amended, Burns' Ann.St. § 40-1201 et seq. and was awarded the weekly sum of $18.70 for one hundred and fifty weeks to be paid by his employer's insurer, Travelers Insurance Company. A lump sum settlement was ordered on August 7, 1946, as a result of which the decedent received $2736.81 plus $544.38 for medical expenses.

The same documents further reflect that, subsequent to the receipt of these benefits by the decedent, the Travelers Insurance Company, in an action in the U. S. District Court for the Northern District of Illinois, sought to recover from the Manhattan Brewing Company the amount of the lump sum settlement and the value of the medical expenses. This law suit was settled and dismissed by stipulation and the decedent furnished the Manhattan Brewing Company with a release of any and all of his rights.

The plaintiff admits all facts which are set out in the motion for summary judgment. Their legal effect, however, is disputed.

The sole issue to be determined by the court is the effect of the acceptance of the award by the decedent upon the plaintiff's right to maintain her present action for wrongful death. It is the view of this court that the decedent's prior recovery by way of an award bars the present action for wrongful death.

The Indiana wrongful death statute, Chapter 2, Section 2-404, Burns' Indiana Statutes, provides as follows: "Action for wrongful death — When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she (as the case may be) lived, against the latter for an injury for the same act or omission." Since an action for personal injuries abated with the death of the injured party, no such action was known or recognized at the common law. A cause of action for wrongful death accrues to the personal representative solely by virtue of the statute, which is in derogation of the common law. Such statutes are subject to strict construction; they demand, by their very nature, literal compliance. The plaintiff, in order to maintain this action, must bring herself within the provisions of the statute. Specifically, she is able to maintain the present action only if the decedent could have maintained his action had he survived.

A decedent's recovery of damages for injuries, which resulted in his death, is a bar to an action by his personal representative for wrongful death. Hecht v. Ohio and M. Ry. Co., 132 Ind. 507, 32 N.E. 302; Golding v. Town of Knox, 56 Ind.App. 149, 104 N.E. 978. An action by a personal representative for the wrongful death of his decedent will be barred if such decedent in his lifetime made a valid settlement for the injuries which resulted in his death. Haskell and Barker Car Co. v. Logermann, 71 Ind.App. 69, 123 N.E. 818. Although the courts recognize the right of action, which is given to a personal representative by the wrongful death statute, as a new cause of action, which does not arise until after death, they emphasize the fact that this statutory action is designed to afford relief for the wrong suffered by the decedent. "The action is bottomed on the same wrongful act of the wrongdoer, whether it be prosecuted by the injured party in his lifetime, or by his personal representatives after his death." Hecht v. Ohio and M. Ry. Co., supra 132 Ind. 507, 32 N.E. 305. If, therefore, a decedent, during his lifetime, has recovered for injuries by way of satisfied judgment, settlement, or by way of any administrative award, which constitutes full satisfaction, his claim for injuries has been merged into the recovery and it has been extinguished. Thereafter, the decedent would not be able to prosecute an action for the same injuries. Consequently, his personal representative could not maintain an action for wrongful death.

The fact that the Indiana legislature intended an award under the Workmen's Compensation Act to operate as a full recovery, thereby extinguishing a claim for injuries, is evidenced by the provisions of Section 13 of this Act: "Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to recover damages or may proceed against the employer for compensation and against such other person to recover damages at the same time, but he or they shall not collect from both; and, if compensation is awarded and accepted under this...