UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
September 19, 1949
LUCKENBACH S.S. CO., Inc.
The opinion of the court was delivered by: BONDY
This being a suit under the Jones Act, 46 U.S.C.A. § 688, the statute of limitations governing suits under the Federal Employers' Liability Act, Sec. 6, 45 U.S.C.A. § 56, is applicable. Engel v. Davenport, 271 U.S. 33, 46 S. Ct. 410, 70 L. Ed. 813. More than three years having elapsed from the time of the injury to the time of the death, suits by the decedent for his injuries would have been barred before he dies. Under the authorities the right of a personal representative to sue under the Federal Employers' Liability Act for his wrongful death is dependant upon the existence of a right on the part of the decedent immediately before his death to maintain an action for the injuries which caused his death. See Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 70, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Flynn v. N.Y., N.H. & H.R. Co., 283 U.S. 53, 51 S. Ct. 357, 75 L. Ed. 837, 72 A.L.R. 1311. The motion to dismiss the complaint accordingly must be granted.
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