The Employers' Liability Act gives a right of action to the
employee, or, in case of his death, to his personal representative
for the benefit of the widow and children, and provides that no
action shall be maintained unless commenced within two years from
the day the cause of action accrued.
Held that the right
of the representative is derivative, and depends upon the
continuance of a right in the injured employee at the time of his
death, so that, where the right of the employee was extinguished
before he died, by the lapse of the prescribed period, there was no
right in his executor, on behalf of his widow and children. P.
283 U. S.
56.
111 Conn.196, 149 A. 682, affirmed.
Certiorari, 282 U.S. 821, to review a judgment in favor of the
Railroad Company in an action under the Federal Employers'
Liability Act.
Page 283 U. S. 55
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit under the Employers' Liability Act for
negligently causing the death of Edward L. Flynn, brought on May
15, 1929, by Flynn's executor for the benefit of Flynn's dependent
widow and children. It is alleged that the injury was suffered on
December 4, 1923, and that it caused Flynn's death on September 1,
1928.
Page 283 U. S. 56
The defendant, respondent here, demurred to the declaration on
the ground that, more than two years having elapsed since the date
when Flynn's cause of action accrued, his right to sue was barred,
and that therefore the suit could not be maintained. Act of April
22, 1908, c. 149, §§ 1, 6, 35 Stat. 65, 66; Act of April 5, 1910,
c. 143, § 1, 36 Stat. 291; Code, Tit. 45, §§ 51, 56. The demurrer
and judgment for the defendant were sustained by the Supreme Court
of Connecticut. 111 Conn.196, 149 A. 682. A writ of certiorari was
granted by this Court. 282 U.S. 821.
The Act of 1908 gives a right of action to the employee or, in
case of his death, to his personal representative for the benefit
of the widow and children, and provides that no action shall be
maintained "unless commenced within two years from the day the
cause of action accrued." § 6. Obviously Flynn's right of action
was barred, but it is argued that the right on behalf of the widow
and children is distinct; that their cause of action could not
arise until Flynn's death, and that therefore the two years did not
begin to run until September 1, 1928. But the argument comes too
late. It is established that the present right, although not
strictly representative, is derivative and dependent upon the
continuance of a right in the injured employee at the time of his
death.
Michigan Central R. Co. v. Vreeland, 227 U. S.
59,
227 U. S. 70. On
this ground, an effective release by the employee makes it
impossible for his administrator to recover.
Mellon v.
Goodyear, 277 U. S. 335,
277 U. S. 344.
The running of the two years from the time when his cause of action
accrued extinguishes it as effectively as a release,
Engel v.
Davenport, 271 U. S. 33,
271 U. S. 38,
and the same consequence follows. Our conclusion that this action
could not be brought is required by the former decisions of this
Court.
Judgment affirmed.
