Opinion · Court of Appeals for the Second Circuit

Komlos v. Compagnie Nationale Air France

209 F.2d 436

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1954-02-26
Topic
employee-benefits-and-executive-compensation

FRANK, Circuit Judge. 1. For the death of Emery Komlos there is a single indivisible cause of action with two items of damage. Since the accident resulting in Komlos” death occurred within a province of Portugal, the Portugal law (the lex loci de-licti) applies. Under it, the dependent: of the deceased is entitled, upon proof of defendant’s negligence, to damages for wrongful death and indemnity (“moral damages”) for the psychic suffering-which the death caused to her.1 Judge-Leibell found,2 and we think properly so,, that, under the Portugal law as submitted to him and under the law of New York,3 Bertha Komlos, the mother of the deceased, has the sole beneficial interest in any recovery for the wrongful death of Emery Komlos, since she was the deceased’s sole dependent and his only next of kin as defined by the New York statute. As Administratrix of her brother’s estate, Edith Komlos has. standing, as a nominal plaintiff, to sue-for her mother.4 The right of the ad-ministratrix to bring the action is recognized by the law of Portugal.5 Defendant argues that Royal Indemnity Company, the insurance carrier, is-the statutory assignee of the cause of' action for the wrongful death of Komlos. because the deceased’s sole dependent,, his mother, elected to receive compensation and failed to sue the third-party tort-feasor (Air France) within six. months after the compensation award..

Citator

Komlos v. Compagnie Nationale Air France is good law as far as the corpus records: followed by 1 later decision, and nothing recorded condemns it.

Authority status
positive
Cited by
42 opinions
Followed
1 times
KOMLOS v. COMPAGNIE NATIONALE AIR FRANCE,209 F.2d 436(2nd Cir. 1953)
KOMLOS v. COMPAGNIE NATIONALE AIR FRANCE.
No. 59, Docket 22751.
United States Court of Appeals, Second Circuit.
Argued November 13, 1953.
Decided December 30, 1953.
Rehearing Denied February 26, 1954.
Page 437
On October 28, 1949, Emery Komlos, a passenger on an airplane operated by defendant Air France, lost his life when the plane crashed on the island of San Miguel, Azores, Republic of Portugal. Komlos, an American citizen, and a resident of New York, was in the employ, in the State of New York, of the Refugee Economic Corporation, and engaged in the work of the corporation at the time of his death. Royal Indemnity Company had issued a workman's compensation policy which covered Komlos and other employees of the Refugee Economic Corporation under the Workmen's Compensation Law of New York. Thirty-two years old and unmarried, Komlos left surviving him his mother, Bertha Komlos, and a sister, Edith Komlos. The mother made a claim for compensation before the Workmen's Compensation Board and received notice of a compensation award on March 6, 1950. The sister of the deceased obtained letters of administration on the estate of Emery Komlos, issued by the Surrogate's Court of New York County. On October 26, 1950, as administratrix, she began an action in Supreme Court, New York County, on behalf of Bertha Komlos, Edith Komlos and the Komlos Estate against defendant Air France, which removed the case to the federal court below on the grounds of diversity of citizenship. The amended complaint claims $150,000 as the loss of the next of kin for the wrongful death of Emery Komlos, $550 for burial expenses, and $1,500 for the loss of decedent's baggage and personal belongings. It also claims that, under the law of Portugal, decedent's next of kin and dependents are entitled to "moral damages" for the negligence of the defendant in causing Komlos' death.

Defendant Air France, in its answer, alleged that the entire "cause of action" for wrongful death alleged in the Komlos complaint belongs to the Royal Indemnity Company under the assignment provision of § 29(2) of the New York Workmen's Compensation Law, McK. Consol.Laws, c. 67. Under § 29(2), where a dependent of the deceased elects to receive compensation and does not sue the third-party tort-feasor within six months after the award of compensation, the dependent's cause of action against the third-party tort-feasor is automaticallyPage 438assigned to the compensation carrier. The six months expired on September 6, 1950. The present action was brought almost two months after the expiration of the six-months' period. Royal Indemnity Company began an action against Air France on October 3, 1951 for the wrongful death of Emery Komlos. Plaintiff moved for consolidation of the Komlos and Royal Indemnity actions. The court below denied the motion. Defendant moved for a dismissal of the Komlos complaint on the ground that the cause of action belonged to Royal Indemnity Company. The motion was granted and that part of the complaint alleging a cause of action for wrongful death was dismissed. The cause of action for destruction of the baggage was remanded to the Supreme Court of New York County on the grounds that it alone would not support federal jurisdiction for lack of the requisite amount. The opinion below is reported at D.C.,111 F. Supp. 393.
Frederick W. Scholem, New York City (Theodore E. Wolcott, New York City, of counsel), for plaintiff-appellant.

Sutta Frankel, New York City (Nathan Frankel, Frank Reiter, New York City, of counsel), for Royal Indemnity Co.

Foley Statt, New York City (Frank J. Foley and Milton James, New York City, of counsel), for defendant-appellee.
Before SWAN, FRANK and MEDINA, Circuit Judges.
FRANK, Circuit Judge.
1. For the death of Emery Komlos there is a single indivisible cause of action with two items of damage. Since the accident resulting in Komlos' death occurred within a province of Portugal, the Portugal law (thelex loci delicti) applies. Under it, the dependent of the deceased is entitled, upon proof of defendant's negligence, to damages for wrongful death and indemnity ("moral damages") for the psychic suffering which the death caused to her.1Judge Leibell found,2and we think properly so, that, under the Portugal law as submitted to him and under the law of New York,3Bertha Komlos, the mother of the deceased, has the sole beneficial interest in any recovery for the wrongful death of Emery Komlos, since she was the deceased's sole dependent and his only next of kin as defined by the New York statute. As Administratrix of her brother's estate, Edith Komlos has standing, as a nominal plaintiff, to sue for her mother.4The right of the administratrix to bring the action is recognized by the law of Portugal.5

Defendant argues that Royal Indemnity Company, the insurance carrier, is the statutory assignee of the cause of action for the wrongful death of Komlos because the deceased's sole dependent, his mother, elected to receive compensation and failed to sue the third-party tort-feasor (Air France) within six months after the compensation award. On the face of it, were the action here aPage 439simple action for wrongful death claiming damages for negligence alone, this contention would seem to be correct. Section 29(2) of the New York Workmen's Compensation Law provides for an automatic statutory assignment of all claims belonging to the injured employee or, in case of his death, to his surviving dependents if they elect to take compensation and fails to commence suit against the third-party tortfeasor within six months after the compensation award.

However, this is not such a case of a simple claim for damages for negligence. While that part of the cause of action demanding indemnity for defendant's negligence in causing a wrongful death is assigned by § 29(2), we think the demand for "moral damages" is not and was never meant to be. True, it has been held that a claim for the pain and suffering of the injured person is part of the claim which passes under § 29(2).6We have no doubt, therefore, that were "moral damages" not unknown to New York law, they would similarly pass. But, since a claim for moral damages is not recoverable in New York or elsewhere in this country, we think it was not in the contemplation of the legislature and therefore does not pass under § 29(2). Consequently, to allow the insurance carrier, Royal Indemnity, to sue on its assigned claim, would be to permit a splitting of the cause of action for Komlos' death. We think it clear that the policy of § 29(2) is to prevent such splitting,7and that, accordingly, to allow Royal to sue for the one assignable item of damage would be in violation of that policy.

The question therefore becomes one of who shall retain the right to sue on the entire cause of action, the estate for the benefit of Mrs. Komlos or the carrier. We think the cogent reasoning in Doleman v. Levine,295 U.S. 221, 55 S.Ct. 741, 79 L.Ed. 1402, should control here. In that case, some dependents of the deceased, elected to receive compensation under the federal Longshoremen's and Harbor Workers' Act, while other dependents elected to sue the third-party tortfeasor.8The Court held that the insurance carrier (in that case, the employer) received only a partial assignment, that is, was subrogated to the rights of only those dependents who elected to receive compensation; having only a partial assignment, the carrier could not cause a splitting of the cause of action, for the employee's death, by bringing its own suit on its assignment. The New York Court of Appeals reached a similar conclusion as to the New York Workmen's Compensation statute, in United States Fidelity Guaranty Co. v. Graham Norton Co.,254 N.Y. 50,171 N.E. 903. Both the United States Supreme Court and the New York Court of Appeals remitted the carrier, the holder of a partial assignment, to the remedy of compelling the compensated dependents to sue the tortfeasor, and thus to reimburse itself out of the proceeds of their action. We think the salutary doctrine against splitting causes of action9should be applied here. IfPage 440Royal Indemnity Company could sue on its assignment, not only would there result such a splitting but also the "moral damages" item would evaporate. To avoid violation of the policy of the statute, we hold that the entire cause of action remains in the hands of Komlos' estate for the benefit of the mother.

2. The district court remanded to the state court the $1,500 claim for loss of baggage and personal belongings, because, having dismissed the wrongful-death action, the court could not retain the remaining claim, the requisite jurisdictional amount being absent. Since this appeal has resulted in the reinstatement of the Komlos wrongful-death action, there is a jurisdictional basis for the retention of the baggage claim and that claim should remain in the federal court and be tried with the wrongful-death action.10

Reversed.
On Petition for Rehearing
PER CURIAM.
The petition for rehearing is denied. In our original opinion we stated that the mother of the deceased is entitled to moral damages under Portuguese law. We made that statement on the basis of substantial data presented to us by the parties. However, we did not intend finally to decide that issue. Accordingly, further pertinent data may be presented at the trial in order that the trial court may be fully informed before arriving at a determination thereon.
  1. A federal court, sitting in New York State, must apply the conflict-of-laws doctrine prevailing in New York State courts. Klaxon Co. v. Stentor Electric Mfg. Co.,313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477. According to New York law, the creation and extent of tort liability is governed by the law of the place where the alleged tort was committed. Loucks v. Standard Oil Co.,224 N.Y. 99,120 N.E. 198. The measure of damages is likewise determined by thelex loci delicti. Hasbrouck v. New York Cent. H.R.R. Co.,202 N.Y. 363, 95 N.E. 808, 35 L.R.A., N.S., 537. ↩
  2. 111 F. Supp. 393, at page 407. ↩
  3. Decedent Estate Law, McK.Consol. Laws, c. 13, § 133. ↩
  4. "Unless the statute [of the lex loci delicti] limits suit to named beneficiaries, or a particular administrator or personal representative, an administrator appointed at the forum may institute the action. Goodrich, Conflict of Laws, § 104, p. 301. Leonard v. Columbia Steam Nav. Co.,84 N.Y. 48. ↩
  5. 111 F. Supp. 393, at page 403. ↩
  6. Lumber Mut. Cas. Ins. Co. v. William Spencer Son Corp.,181 Misc. 416,41 N.Y.S.2d 319. ↩
  7. The New York courts have often stated that the function of § 29(2) is to prevent the splitting of causes of action. See, e.g., Skakandy v. State, 1948,188 Misc. 214,66 N.Y.S.2d 99, affirmed274 App. Div. 153,80 N.Y.S.2d 849. ↩
  8. The Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 901 et seq. compels an election between compensation and the right to bring suit against the third-party tortfeasor. Unlike the present New York Compensation Statute § 29(2), the Longshoremen's and Harbor Workers' Act specifies that dependents cannot both receive compensation and bring suit. Nevertheless, for the purposes of the present case, the Doleman case is closely in point, since, in both cases, the election to receive compensation could, at best, result in but a partial assignment to the compensation carrier. ↩
  9. Indemnity Ins. Co. of North America v. Pan-American Airways, D.C.,57 F. Supp. 980. ↩
  10. See28 U.S.C. § 1441(c). ↩