Thornton v. Puget Sound Power & Light Co.

• Decision Date: 17 October 1930
• Docket Number: No. 20390.,20390.
• Citation: 49 F.2d 347
• Court: U.S. District Court — Western District of Washington
• Parties: THORNTON v. PUGET SOUND POWER & LIGHT CO.

49 F.2d 347 (1930)

THORNTON v. PUGET SOUND POWER & LIGHT CO.

No. 20390.

District Court, W. D. Washington, N. D.

October 17, 1930.

Douglas T. Ballinger, of Seattle, Wash., for plaintiff.

Bullitt, Kennedy & Schramm, of Seattle, Wash., for defendant.

NETERER, District Judge (after stating the facts as above).

The motions may be considered together.

Pain and suffering introduces no new cause of action. It is but an elaboration of the statement of the injury. Washington Railway & Electric Co. v. Scala, Adm'x, 244 U. S. 630, 37 S. Ct. 654, 61 L. Ed. 1360. See, also, Luckenbach S. S. Co. v. Campbell (C. C. A.) 8 F.(2d) 223; St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U. S. 648, 35 S. Ct. 704, 59 L. Ed. 1160. Nor is Lewis v. Texas & Pacific Railway Co., 146 La. 227, 83 So. 535, to the contrary.

The Merchant Marine Act (section 688, title 46, USCA) gives the right of action for death of any seaman, as a result of personal injury, to the personal representative of such seaman, and gives to such seaman the right of railway employees, by the Federal Employers' Liability Act (section 51, title 45, US CA), or to his personal representatives, for the benefit of his surviving widow and children, etc. The estate does not benefit, but the representative acts solely as trustee for the designated beneficiaries. Lindgren v. United States, 281 U. S. 38, 50 S. Ct. 207, 74 L. Ed. 686.

The motions are denied.

May the plaintiff prosecute this action without repayment or tendering repayment and bringing into court the amount received?

The plaintiff relies upon Bjorklund v. Seattle Electric Co., 35 Wash. 439, 77 P. 727, 1 Ann. Cas. 443.

This court in Johnson v. Chicago M. & St. P. Ry. Co., 224 F. 196, at page 200, said:

"The Washington court is not in harmony with the federal courts upon this issue. The rule adopted by the United States courts, however, must prevail. The Circuit Court of Appeals of this circuit, in Tweeten v. Railway Co., 210 F. 828, at page 830, 127 C. C. A. 378, in applying the fellow servant doctrine, stated that the rule adopted by the United States courts must control in personal injury cases, and said:

"`Here is a situation which seems to demand remedial legislation; for, while the courts of the United States will follow the decisions of the courts of the state in which they are held when, in construing the state law, those decisions establish a rule of property, they must ignore them when they establish no more than a rule of liability for personal injuries.'"

Since the creation of the Ninth Circuit in March, 1891, and beginning with Hill v. N. P. Railway Co. (C. C. A.) 113 F. 914, McKenna, later Justice McKenna, Gilbert, and Ross, Circuit Judges, it has been the rule that, to avoid a release for personal injury for fraud, the money received must be returned or tendered and brought into court. While the release agreement may not be a contract under seal and would not require a proceeding in equity to set it aside, and could be presented in the trial of this issue if the consideration was returned or tendered and brought into court, as said by Judge Gilbert in Great Northern Ry. Co. v. Fowler (C. C. A.) 136 F. 118, where it was held that misrepresentation or fraud on the part of the releasee may be effective to avoid a release induced thereby. In that case the appellee brought into court the tendered repayment of the money received, with interest thereon.

In Price et al. v. Conners (C. C. A.) ...