Powdrell & Alexander, Inc. v. Fields Point Manufacturing Corp. , 7 R.I. Dec. 191 ( 1931 )

CHURCHILL, J.

Heard on demurrer to the declaration of Apolonia Kuna.

Under the Workmen’s Compensation Act of Connecticut, which is pleaded in the declaration, whenever an employee is injured in the course of his employment under circumstances which impose liability on a third party, the employer paying compensation may bring an action to recover the amount of the compensation which he has paid or is obligated to pay and the injured employee may also bring suit against such third party so liable.

The record shows that one Olympia Kuna, employed by Powdrell & Alexander, Incorporated, came to his death by reason of the escape of chlorine gas from a tank claimed to be negligently constructed and sold by the defendant to Powdrell & Alexander, Incorporated.

Powdrell & Alexander, Incorporated, were doing business in the .State of Connecticut and the accident occurred in that State. The employer, Powdrell & Alexander, Incorporated, brought suit in Rhode Island against the defendant to recover the amount of compensation paid or payable by it to the representative of the deceased Olympia Kuna.

Within the time limited by the statutes of Connecticut, the administra-trix of Olympia Kuna joined in the action and is seeking to recover damages for the death of Olympia Kuna.

A motion to drop Apolonia Kuna as a party plaintiff in the action was denied, the motion being based on the ground of misjoinder of parties.

The defendant now demurs to the declaration and the fifth ground of demurrer taken is that the declaration does not set forth the statute or rule of Connecticut allowing recovery for death by wrongful act.

This point is well taken. While it is true that a right on the part of the party injured to sue a third party is granted by the terms of the Compensation Act yet the primary right to maintain an action for death by wrongful act is involved and is the basis of the action. In the case at bar such right to sue for death by wrongful act must be based on some statute of the State of Connecticut creating liability under such circumstances. Such statute is not set forth. The general rule is that where liability is predicated on the statute of a foreign state, such statute must be pleaded.

Demurrer sustained. Plaintiff given ten days in which to amend.