(after stating the facts as above).
The motions may be considered together.
Pain and suffering introduces no new cause of action. It is but an elaboration of the statement of the injury. Washington Railway & Electric Co. v. Scala, Adm’x, 244 U. S. 630, 37 S. Ct. 654, 61 L. Ed. 1360. See, also, Luckenbach S. S. Co. v. Campbell (C. C. A.) 8 E.(2d) 223; St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U. S. 648, 35 S. Ct. 704, 59 L. Ed. 1160. Nor is Lewis v. Texas & Pacific Railway Co., 146 La. 227, 83 So. 535, to the contrary.
The Merchant Marine Act (section 688, title 46, USCA) gives the right of action for death of any seaman, as a result of personal injury, to the personal representative of such seaman, and gives to such seaman the right of railway employees, by the Federal Employers’ Liability Act (section 51, title 45, US CA), or to his personal representatives, for the benefit of his surviving widow and children, etc. The estate does not benefit, but the representative acts solely as trustee for the designated beneficiaries. Lindgren v. United States, 281 U. S. 38, 50 S. Ct. 207, 74 L. Ed. 686.
The motions are denied.
May the plaintiff prosecute this action without repayment or tendering repayment and bringing into court the amount received?
The plaintiff relies upon Bjorklund v. Seattle Electric Co., 35 Wash. 439, 77 P. 727, 1 Ann. Cas. 443.
This court in Johnson v. Chicago M. & St. P. Ry. Co., 224 F. 196, at page 200, said:
“The Washington court is not in harmony with the federal courts upon this issue. The rule adopted by the United States courts, however, must prevail. The Circuit Court of Appeals of this circuit, in Tweeten v. Railway Co., 210 F. 828, at page 830, 127 C. C. A. 378, in applying the fellow servant doctrine, stated that the rule adopted by the United States courts must control in personal injury eases, and said:
“ ‘Here is a situation which seems to demand remedial legislation; for, while the courts of the United States will follow the decisions of the courts of the state in which they are held when, in construing the state law, those decisions establish a rule of property, they must ignore them when they establish no more than a rule of liability for personal injuries.’ ”
Since- the creation of the Ninth Circuit in March, 1891, and beginning with Hill v. N. P. Railway Co. (C. C. A.) 113 F. 914, McKenna, later Justice McKenna, Gilbert, and Ross, Circuit Judges, it has been the rule . that, to avoid a release for personal injury for fraud, the money received must be returned or tendered and brought into court. While the release agreement may 'not be a contract- under seal and would not require a proceeding in equity to set it aside, and could be presented in the trial of this issue if the consideration was returned or tendered and brought into court, as said by Judge Gilbert in Great Northern Ry. Co. v. Fowler (C. C. A.) 136 F. 118, where it was held that misrepresentation or fraud on the part of the releasee may be effective to avoid a release induced thereby. In that case the appellee brought into court the tendered repayment of the money received, with interest thereon.
In Price et al. v. Conners (C. C. A.) 146 F. 503, 504, the trial court had instructed the jury that, if they believed that the plaintiff received $500 and found that the release was fraudulently obtained, it would not be necessary for the plaintiff to tender back the money or repay the same, but the jury, in case they returned a verdict for the plaintiff, should deduct the money from the damages assessed. The jury found for the plaintiff and deducted the amount. The ease was appealed. Judge Ross (with whom sat Gilbert, C. J., and Hawley, D. J.) said: “* * * The court below ruled that it was not necessary that the plaintiff should, have repaid or tendered the money received by him, as a *349condition precedent to avoiding the release. That such is not the law upon such a state of facts was distinctly held by this court in the case of Hill v. Northern Pacific Railway Co., 113 F. 914, 51 C. C. A. 544” — and reversed the judgment.
In Mahr v. Union Pac. R. Co. (C. C. A.) 170 F. 699, the court (Gilbert, Morrow, and Ross) again expressly held that, to annul a previous settlement and release obtained by mistake or fraud, the money received must be returned or tendered before an action can be maintained at law. In Miles v. Lavender (C. C. A.) 10 F.(2d) 450, at page 454, the court (Hunt, Rudkin, and Morrow) again referred with approval to • the decided cases. This court in the Thomas P. Beal, 298 F. 121, followed these decisions and held that a party seeking relief from a fraudulent release must first offer to return the money, received as a consideration for the release. These decisions • are binding on this court.
The demurrer must therefore be sustained.