229 F. 765 | D. Conn. | 1916
The vice of the defendant’s argument is that it erroneously assumes that the beneficiaries’ right in the judgment which may be recovered in an action upon section 1094 of the General Statutes of Connecticut, Revision 1902, vested before the judgment. This contention is not sound. The beneficiaries cannot be determined until the judgment is rendered, and the court of probate has nothing to do, except to determine who are the beneficiaries on the day the judgment is rendered, under section 399 of the General Statutes of Connecticut, Revision 1902, as it was prior to the amendment of
The precedents cited by counsel for the defendant in support of its contention arise in jurisdictions where the statutes are substantially different from the Connecticut statute, and where the existence of the cause of action is not dependent upon the appointment of an administrator, but grows out of the negligent death; the action being for damages sustained by designated beneficiaries on account of such negligent death, and which comes into existence by reason of the death, and which is not cumulative, nor the survival, continuation, or enlargement of any existing right, but the substitution of a new right and remedy by way of exception. It is possible in such cases a right of action might vest in the designated beneficiaries when the action ac
As already indicated, tire whole tenor of the decisions of the Connecticut Supreme Court of Errors is to make tire action given by section 1094 a purely survival one for the compensation of those dependent upon the decedent, free from claims of creditors, such beneficiaries to be determined under section 399 as of the date of the judgment.
This view of the law is borne out by Blagge v. Balch, Brooks v. Codman, and Foote v. Women’s Board of Missions, cases arising under the act of Congress relating to the French spoliation claims and reported in 162 U. S. 439, 16 S. Ct. 853, 40 L. Ed. 1032. These were writs of error to the Supreme Judicial Court of tire state of Massachusetts and the superior court of the state of Connecticut for the county of New Haven, respectively, and involved the construction of the proviso in the Act of Congress of March 3, 1891, c. 540, 26 Stat. 908, which is as follows:
“That in all cases where the original sufferers were adjudicated bankrupts the awards shall be made on behalf of the next of kin instead of to assignees in bankruptcy, and the awards in the cases of individual claimants shall not be paid until the Court of Claims shall certify to the Secretary of the Treasury that the personal representatives on whose behalf the award is made represent the next of kin, and the courts which granted the administrations, respectively, shall have certified that the legal representatives have given adequate security for the legal disbursement of the awards."
The Supreme Court held, reversing the Supreme Judicial Court of Massachusetts, in Codman v. Brooks, 159 Mass. 477, 34 N. E. 689, and the Supreme Court of Errors of the State of Connecticut, in Leffingwell’s Appeal from Probate, 62 Conn. 347, 25 Atl. 453, that the words “next of kin,” as used in the proviso meant next of kin living at the date of the act, and not at the decease of the original sufferers. In the course of the opinion of the court, which was delivered by Chief Justice Fuller, at page 462 of 162 U. S., at page 858 of 16 Sup. Ct. (40 L. Ed. 1032), it is said:
“And this conclusion is in harmony with * * * section 1981 of the Revised Statutes in reference to recovery of damages by the legal representatives of persons killed by wrongful act in violation of the civil rights act of 1871, the Act of Congress of February 17, 1885, c. 126, 23 Stat. 307, providing for actions in the District of Columbia for the death of persons caused by wrongful acts of others and generally with the statutes of the states giving a right of action for injuries resulting in death.”
“The action is prosecuted under section 284, R. S. 1881. This section authorizes the action to be prosecuted by the administrator of the decedent. The damages recovered inure to the exclusive benefit of the widow and children of the deceased. In this case, there being no children, tho damages would inure to the sole benefit of the widow, but she could not prosecute the action. It must be prosecuted by the administrator. This being true, if the widow can compromise the cause of action and release the damages, so as to terminate the suit, it places the administrator in the anomalous position of having tho sole right to prosecute the action and yet gives to the widow, or widow and children, if there be children, the right to compromise the action outside of court, and cancel the claim for damages upon which the action is based. While it would give to the administrator the sole right to prosecute the action, yet he would not have the sole right to control the prosecution of the action once commenced. It would seem that the law which authorizes a person to prosecute an action would give to him, by necessary implication, the right to control such prosecution, and not permit one not a party to the action, and having no right to be a party to the action, the right to compromise the action. While actions under this section of the statute are prosecuted for the benefit of, and the damages inure to the exclusive benefit of, the widow and children of the deceased, yet it contemplates the collection of the damages by tho administrator, and the turning of the same over to tho widow and children on final settlement.”
I have endeavored to give the question before us careful consideration, especially as the precise point involved does not seem to have been decided by the Connecticut courts; but, in view of the similarity between the Connecticut statute and those .of Iowa and Indiana, 1 am compelled to abide their ruling, and hence the conclusion reached on the first argument.
Ret the demurrer be sustained.