The opinion of the court was delivered by: FORMAN
Plaintiff sues for damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., claiming he is totally and permanently disabled for regular employment for hire. In partial answer to the complaint defendant makes the following pertinent allegations:
"If the plaintiff is totally and permanently disabled from regular employment for hird, he is entitled to receive an annuity under the Act of Congress known as the Railroad Retirement Act of 1937, which annuity would amount to approximately $95.00 per month for the rest of his life, and if the plaintiff is entitled to any damages from defendant, and is totally and permanently disabled from regular employment for hire, the damages should be mitigated by deducting therefrom the present value of an annunity of about $95.00 a month for the rest of the plaintiff's life.
The case was brought before this court for a pre-trial conference, and a motion has been made to strike the above quoted defense of the defendant. For the purpose of the motion it is admitted that plaintiff has been in the employ of defendant for a period of thirty years.
To effectuate the purpose of the Railroad Retirement Act of 1937, 45 U.S.C.A. § 228a et seq., Congress enacted a companion act, Carriers Taxing Act of 1937, 45 U.S.C.A. § 261 et seq., creating a fund to be paid into the Treasury of the United States, to which the employer and employee contribute equally. The defendant admits that if it had not contributed to the fund from which the plaintiff might be entitled to receive an annuity, then it would not be entitled to have the annuity taken into consideration. Since it has contributed to the fund, mitigation of damages is sought: (1) to the full extent of the annuity, or (2) in the sum of 1/2 the annuity, or (3) failing in either of these claims defendant claims a set-off amounting to the sum it has contributed to the fund.
The pertinent parts of the Railroad Retirement Act are as follows:
"There is hereby established as an independent agency in the executive branch of the Government a Railroad Retirement Board * * *." 45 U.S.C.A. § 228j(a).
"The Board shall have and exercise all the duties and powers necessary to administer this Act and the Railroad Retirement Act of 1935. The Board shall take such steps as may be necessary to enforce such Acts and make awards and certify payments." 45 U.S.C.A. § 228j(b) 1.
"(a) The following-described individuals * * * shall * * * be eligible for annuities after they shall have ceased to render compensated service to any person * * *:
"1. Individuals who on or after the enactment date shall be sixty-five years of age or over.
"2. Individuals who on or after the enactment date shall be sixty years of age or over and (a) either have completed thirty years of service or (b) have become totally and permanently disabled for regular employment for hire * * *.
"Such satisfactory proof of the permanent total disability and of the continuance of such disability until age sixty-five shall be made from time to time as may be prescribed by the Board. If the individual fails to comply with the requirements prescribed by the Board as to proof of the disability or the continuance of the disability until age sixty-five, his right to an annuity under subdivision 2 or subdivision 3 of this subsection by reason of such disability shall, except for good cause shown ...