Civil Action No. 524.
December 3, 1945. On Reargument November 12, 1946.
William H. Foulk and William Poole (of Southerland Berl Potter), all of Wilmington, Del., for plaintiff.
William Prickett, of Wilmington, Del., for defendants.
Action by Delaware Coach Company, a corporation of the State of Delaware, against Horace Elbert Savage, Jr., and others, to recover for damages sustained by plaintiff's trolley coach in a collision with a tractor-trailer and the amount of an award made against plaintiff under Delaware Workmen's Compensation Law to widow and child of plaintiff's employee who was driving the trolley coach. On defendants' motion to strike a portion of the complaint as redundant and immaterial.
This is an action by plaintiff to recover for damage to plaintiff's trolley coach. Recovery is also sought for the amount of an award made against plaintiff under the Delaware Workmen's Compensation Law to the widow and child of plaintiff's employee-driver. The present matter arises on defendants' motion to strike under Rule 12(f), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, a certain portion of the complaint for the reason that it is redundant and immaterial.
The pleadings recite that on January 19, 1944, plaintiff was operating a trolley coach which collided at Vandever Avenue and Governor Printz Boulevard, Wilmington, Del., with a tractor and trailer owned by Hagan, one of the defendants, leased by him to Savage, another defendant, and driven by Fulmer, the third defendant. Plaintiff's driver, Melella, who was killed in the collision, left his widow and a child, Elaine, about 6 years old, both dependent. The widow, Naomi D. Melella, elected to take compensation for herself and the child, and the Delaware Coach Company, the employer, seeks to be subrogated to her rights as widow of Melella against defendants herein.
The complaint alleges that, under the Delaware Workmen's Compensation Law, the widow received $15 a week from her husband's death on January 19, 1944, until February 6, 1945, when she remarried. The complaint then alleges the amount already paid to the widow and the amount due to the minor child and seeks by means of a claim of subrogation to recover such amounts against defendants. It is this part of the complaint which defendants seek to strike under Rule 12(f) for the reason that it is redundant and immaterial.
This portion of the complaint is in the following language:
"That under the provisions of said Workmen's Compensation Law, the said Elaine Melella is entitled to receive from the plaintiff the sum of $7.50 per week from February 6, 1945 until January 11, 1950 and thereafter the sum of $4.50 per week until July 13, 1953, which is the date on which she reaches the age of sixteen years, making a total obligation of payment to the said minor child, Elaine Melella, in the amount of $2743.71.
"The total amount paid to the widow of the decedent and payable to his minor child by the plaintiff under the Workmen's Compensation Law of the State of Delaware is $3366.55.
"That under and by virtue of Section 6108 of the Revised Code of Delaware (1935), the plaintiff was subrogated to the rights of the dependents of Frank R. Melella, deceased, and any recovery against the defendants herein in excess of the compensation paid and payable by the plaintiff as employer shall be paid when collected to the dependents of the said Frank R. Melella, deceased."
If a portion of a complaint is insufficient in law, it is redundant within the meaning of rule 12(f) of the Federal Rules of Civil Procedure. See Best Foods v. General Mills, D.C.Del., 3 F.R.D. 459.
Defendants argue that since the child has no cause of action under the Delaware Death Statute to recover for the negligence causing the death of the father, plaintiff can not recover from defendants for compensation paid to that dependent by the plaintiff-employer. Plaintiff, on the other hand, argues that since the widow elected to take compensation, the employer immediately became subrogated to her rights as they then existed, and these rights are determined entirely by the provisions of the Delaware Workmen's Compensation Law, as amended, which provisions are set forth in the margin.
The Delaware Death Statute creates a cause of action in only two persons. Rev. Code of Delaware, 1935, Sec. 4638, provides:
"Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there be no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned."
Rev. Code of Delaware, 1935, Section 6108:
"Whenever an injury for which compensation is payable under this chapter 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 may, at his option, either claim compensation under this chapter or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both; and if compensation is awarded under this chapter, the employer having paid the compensation or having become liable therefor, shall be subrogated to the rights of the injured employee, or of his dependents to recover damages against such third person, and may recover in his own name or that of the injured employee from the other persons in whom legal liability for damages exists, the indemnity paid or payable to the injured employee. Any recovery against such third person in excess of compensation theretofore paid and thereafter payable by the employer (less the cost of securing and collecting the same) shall be paid forthwith when collected, to the employee or the dependents."
Since jurisdiction is here based on diversity, Delaware law must be followed. Travelers' Ins. Co. v. E.I. Du Pont De Nemours Co., 1 Terry 285, 9 A.2d 88, 92, is the Delaware case pertinent here. The issue in that case was whether an insurer or an employer was authorized to bring suit against a third party tortfeasor for compensation paid by it to the dependent mother of a deceased employee, when the widow of the deceased employee was still living, but had been separated from him for some twenty-one years and was, therefore, not dependent upon him for support. The defendant demurred on the ground that the dependent mother to whose rights the employer sought subrogation had no right of action against the defendant. The plaintiff-employer argued "* * * that the Compensation Act is amendatory of the Death Act, and that immediately upon receiving compensation the dependent of the deceased is invested with a right of action under the Death Act, which right in turn passes to the employer, or insurer paying compensation." The Delaware court rejected this argument and sustained the demurrer on the theory that the employer is subrogated only to such rights as would exist in dependents if such compensation had not been paid. The court said:
"We are of the opinion that when the Statute says that an employer having paid compensation `shall be subrogated to the rights of the injured employee, or of his dependents to recover damages against such third person,' it means that the employer is subrogated to the extent that the employer has become liable to a dependent to whom the wrong doer is also liable under the provisions of the Death Act. We do not think that our Compensation Act creates any new rights of action for wrongful death, separate or apart from the Death Act itself, nor does it enlarge upon the designated beneficiaries under the Death Act. What it does accomplish is the subrogation of the employer in those cases where he has paid compensation to dependents who, regardless of the Compensation Law, had a right of action, and these latter rights are those which are subrogated."
The Delaware Death Statute creates a cause of action for death caused by negligence and confers it on the "widow or widower of any such deceased person, or, if there be no widow or widower, the personal representatives." The right of the employer to recover from the tortfeasor is based on the statutory subrogation to such rights as would exist in the dependents if such compensation had not been paid, but the Death Statute does not give the dependents, as such, any rights.
Any contrary view is foreclosed by the Travelers' Insurance Company decision, which manifestly governs the case at bar. The only factual difference — a difference without any legal validity — is that there the compensated dependent was the employee's mother; here the dependent is the employee's child. But neither had a right of action for the death of the employee. Since the employer is subrogated only to the right of action which the dependent had, and the dependent having no right of action, the employer, of course, is subrogated to nothing. The Delaware decision impels the conclusion that the dependent child here had no right to which plaintiff could be subrogated.
Motion to strike is accordingly granted.
Plaintiff insists it should be compensated for the payments to be and made to the child of the decedent. For plaintiff to prevail, it must be upon the assumption that it is subrogated to the rights of the child, i.e., the dependent referred to in § 6108, supra. But this would be a false assumption, for the child had no rights vis-a-vis the tortfeasor. Consequently, plaintiff is subrogated to nothing with respect to payments made to the child. For plaintiff to prevail, it must be held that § 6108 (the compensation statute) amends § 4638 (the Death Act) so as to give dependents a right of action for wrongful death of the parent or mother for son, etc. This, the Delaware court, when the precise point was presented, refused to do in Travelers' Insurance Co. v. E.I. DuPont De Nemours Co., supra.
On reargument, the parties devoted their principal emphasis to whether the language attacked in the complaint should or should not remain as a matter of pleading, and whether the plaintiff's right to recover the amounts paid the child should be postponed until trial or until the jury would be instructed on the quantum of damages. As stated before, if plaintiff can not recover for the amounts paid to the child, then the language in the complaint concerning this item is insufficient in law; as such, it is redundant within the meaning of Federal Rules of Civil Procedure, rule 12(f), 28 U.S.C.A. following section 723c, and should be stricken. Best Foods, Inc., et al. v. General Mills, Inc., supra.