Opinion
No. 11112.
October 19, 1950.
Ben G. Ruby, Cleveland, Ohio, for appellant.
Paul Lamb, Cleveland, Ohio, for appellee.
Before HICKS, Chief Judge, and SIMONS and MILLER, Circuit Judges.
This appeal was considered upon the record and briefs for respective parties.
It appearing that at the time of decedent's death on May 8, 1947 any right of action by him under the provisions of the Federal Employers' Liability Act for injuries suffered on September 30, 1943, was barred by the three-year Statute of Limitations governing such action, 45 U.S.C.A. § 56.
And that appellant's claim, filed herein on July 7, 1949, is derivative and dependent upon the continuance of a right in the injured employee at the time of his death, Flynn v. New York, N.H. H.R.R. Co., 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837; Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L.Ed. 906.
It is ordered that the judgment of the District Court dismissing the complaint be and is affirmed.