whole case, it is proper for the court to favorably consider the motion for summary judgment of that part of the complaint in which it appears from the pleadings that the plaintiff is not entitled to recover from the defendant.
In the complaint it is set forth that the estate of the decedent incurred considerable expenditures for the burial of said decedent, and that the action was brought on behalf of the estate of the decedent.
Under the Act it is provided that every carrier shall be liable for damages to any employee suffering injury, or in the case of death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents, and, if none, than of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier. 45 U.S.C.A. § 51.
If the injury to the employee results in death, his personal representative, while not given any right of action in behalf of the estate, is vested, solely as trustee for the designated survivors, with the right to recover for their benefit such damages as will compensate them for any pecuniary loss which they sustained by the death. Lindgren v. United States, 281 U.S. 38, 41, 50 S. Ct. 207, 74 L. Ed. 686; Friedman v. McHugh, supra; Poff v. Pennsylvania R.R., 2 Cir., 150 F.2d 902.
The estate in the instant action cannot recover against the defendant, and the motion of defendant for summary judgment as to the action of the administrator d.b.n. in behalf of the estate of Berardino Campagna is therefore granted.
The plaintiff further claims that the estate of the decedent and/or the widow and children have been damaged to the extent of $ 923.00, which was the amount expended for the burial of the deceased. There is only one element of damage which can be recovered under the Federal Employers' Liability Act, and that is the pecuniary loss sustained by the widow and children, and therefore funeral expense is not a proper element of damage which can be recovered under said act by either the estate or the administrator on behalf of the widow and children. Hoffman v. Reading Co., supra; Dow v. Carnegie Illinois Steel Corp., 3 Cir., 165 F.2d 777; Heffner v. Pennsylvania R. Co., 2 Cir., 81 F.2d 28.
In connection with the funeral expense, it would have been possible for the Administrator and/or the widow and children to have instituted an action in the courts of Pennsylvania under the Pennsylvania Wrongful Death Statute. 12 P.S.Pa. 1601 et seq.; Hoffman v. Reading Co., supra.
The motion for summary judgment as to that part of the complaint which is based on funeral expenses will, therefore, be granted in favor of the defendant.
That part of the motion that refers to the action of the Administrator in his trust or fiduciary relationship in behalf of the widow and children of the deceased is refused.