Werkley v. Koninklijke Luchtvaart Maatschappij NV

• Decision Date: 28 January 1952
• Citation: 110 F. Supp. 746
• Parties: WERKLEY v. KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N. V. (Royal Dutch Airlines Holland).
• Court: U.S. District Court — Southern District of New York

110 F. Supp. 746

WERKLEY v. KONINKLIJKE LUCHTVAART MAATSCHAPPIJ N. V. (Royal Dutch Airlines Holland).

United States District Court S. D. New York.

January 28, 1952.

Walsh & Levine, New York City (Theodore E. Wolcott, New York City, of counsel), for plaintiff.

Condon & Forsyth, New York City (Cyril Hyde Condon and George Foster, Jr., New York City, of counsel), for defendant.

RYAN, District Judge.

On October 4, 1951, D.C., 111 F.Supp. 300, we granted defendant permission to amend its answer pleading the additional defense that the plaintiff is not the real party in interest; at the same time, we denied defendant's motion for summary judgment. Our reasons for these rulings are set forth in a memorandum of that date, familiarity with which is assumed.

Plaintiff and defendant move for reargument. There has now been submitted for our examination and inspection the original files of the Workmen's Compensation Board, State of New York, on Claim No. 49060162. This claim was filed by Peggy E. Werkley for compensation due to her as widow and to her infant child by reason of the death of John Werkley on July 12, 1949 at Bombay, India in the airplane crash which is the incident on which the claims asserted in the complaint herein are based. From these files, we find that an award of compensation was made on this claim on October 17, 1949. This action was not commenced until July 6, 1950, more than six months after the first award of compensation. The right to file this third-party suit therefore is vested in the Workmen's Compensation Carrier by operation of Sec. 29(2) of the Workmen's Compensation Law of New York, McK.Consol. Laws, c. 67, unless the statute of India which created the right to sue for wrongful death contains some express provision prohibiting this. Alexander v. Creel, D.C., 54 F.Supp. 652. This must be determined by examination of the applicable statutes of India. We find nothing in either the Indian Fatal Accidents Act of 1855 or in the Indian Carriage by Air Act of 1934, which would prevent such an assignment from becoming effective by operation of law. Section 6 of the Transfer of Property Act of India by its terms bars the voluntary assignment of a right to sue. It does not bar an assignment by operation of law which results from inaction rather than from a voluntary act on the part of the person possessing the cause of action.

The first five counts of the complaint assert claims which seek recovery on behalf of the widow and infant of the deceased. These counts and the claims they assert have by operation of the Workmen's Compensation Law of New York become vested in the compensation carrier, and as to them the defendant's motion must be granted and the complaint dismissed.

The recent amendment to Section 29(2) accomplished by Chapter 527, Laws of New York 1951, is not applicable to the instant suit. This amendment became effective on September 1, 1951; the right to assert the claims herein was vested in the compensation carrier prior to that date. The statute has no retroactive effect.

The sixth count of the complaint is allegedly brought on behalf and for the benefit of the estate of the deceased and seeks recovery for pecuniary loss to the estate. Thus, paragraph "Twenty-Seventh" alleges that,

"It was and continues to be the law of India that in any such action or suit for wrongful death, the administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act and such recovery shall be part of the assets of the deceased's estate."

It is the contention of the plaintiff that the fatal accident under the law of India gave rise to two separate and distinct claims—one, solely for the benefit of the widow and infant, and the other, solely for the benefit of the estate of the deceased. The derivation of the claims asserted in the first five counts of the complaint plaintiff argues is in the Indian Fatal Accidents Act, The Indian Carriage by Air Act and the Warsaw Convention; the second claim, asserted in the sixth count of the complaint, it is urged is provided for by Section 2 of the Indian Fatal Accidents Act, which in part reads:

"Provided that, in any such action or suit the executor, administrator or representative of the deceased may assert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered shall be deemed part of the assets of the Estate of the deceased."

By paragraph "Twenty-Eighth" of the complaint, plaintiff alleges in support of the sixth count that "deceased at the time of his death was in good health and had a life expectancy of 31.7 years and the pecuniary loss suffered by his estate is in the sum of $250,000." This count asserted on behalf of the estate plaintiff urges does not fall within the scope of Section 29(2) of the New York Workmen's Compensation Law, even though it may be held that the section does apply to the other counts of the complaint.

The Indian Fatal Accidents Act, Act No. XIII of 1855, gives dependents under Section 1 the right to sue to recover compensation for pecuniary loss sustained by them occasioned by death due to the wrongful act or neglect of another. It also gives the legal representatives of the deceased, under Section 2, the right to make claim for any pecuniary loss to the estate of the deceased resulting from the wrongful death. Any recovery had under Section 2 is for the benefit of and becomes part of the estate of the deceased. The damages recoverable under this section, however, are limited to those losses which could naturally be contemplated and which are the natural consequences and result of the wrongful act. Secretary of State v. Gokal Chand (1925), ...