The plaintiff, a citizen of the State of California, has commenced an action against the defendant, a Delaware corporation, claiming damages which exceed the sum or value of $3,000. The jurisdiction of the Court is based upon 28 TJ.S.C. § 1332.

Plaintiff seeks to recover damages for wrongful discharge by defendant in violation of a collective bargaining agreement. According to the allegations of the amended complaint, the plaintiff was employed by the defendant in 1950 as a laborer. This employment continued until August 1, 1956, when he was injured while working in the defendant’s lumber yard. A complaint for personal injuries was filed in this Court on September 10, 1956, in which the plaintiff complained:

Before the matter went to trial, the plaintiff compromised with the defendant on April 10, 1957, accepting the sum of $28,000 in full settlement of his claim, and releasing defendant and resigning from employment with defendant. Shortly thereafter on July 15, 1957, the *253 plaintiff, claiming to have been certified by the defendant as physically fit to return to his work, presented himself to the defendant and demanded to be reinstated in his position. The defendant refused to return the plaintiff to work, and this action was filed eleven months after such refusal.

Defendant has moved for summary judgment asserting that the settlement of the F.E.L.A. case is a bar to this action.

The basic argument of plaintiff is that in the action for personal injuries, he merely alleged that he would be incapable of performing his usual work for an indefinite period of time, and that he did not allege that he had been permanently disabled, and, therefore, his settlement recovery cannot be for loss of future earnings.

The defendant, contesting this claim, has argued that the settlement of $28,000 could only be construed as damages for the loss of future earnings. The following cases, Scarano v. Central R. Co. of New Jersey, 3 Cir., 1953, 203 F.2d 510 ; Buberl v. Southern Pacific Co., D. C.N.D.Cal.1950, 94 F.Supp. 11 ; Wallace v. Southern Pacific Co., D.C.N.D.Cal. 1951, 106 F.Supp. 742 ; Sands v. Union Pacific R. Co., D.C.Or.1956, 148 F.Supp. 422 ; Pendleton v. S. P. Co., 21 CCH, Labor Cases § 66883 (1952); Boring v. S. P. Co., Civ. #34528, (1956); and Dalbo v. S. P. Co., Civ. #34580, (1955), all involved substantially the same issue, and in all of them, except Wallace, summary judgment was granted to the defendant.

The first amended complaint is framed in two alleged causes of action, the first of which asks for damages for the alleged breach of the collective bargaining agreement, and the second of which asks for damages for the alleged breach of an agreement by defendant that “plaintiff’s status as an employee of defendant would in no way be impaired, prejudiced, jeopardized or otherwise affected by his institution of said action (the F.E.L.A. action), said settlement and compromise thereof, or the acceptance by plaintiff of the sum of $28,000 pursuant to said compromise and settlement.”

As to the first cause of action, or claim for relief, an analysis of the F.E.L.A. settlement demonstrates that a substantial portion of the settlement figure of $28,000 could only have been made for loss of future earning capacity. Plaintiff was almost fifty-three years of age and had approximately twelve years of working life prior to the retirement age of sixty-five; his earnings were approximately $3,600 per year; there was no claim for medical expenses; and he was ready to return to work seventy-one days after the settlement. The injury occurred on August 1, 1956, and the settlement was made on July 15, 1957, almost one year from the date of injury, therefore no more than $3,600 could be assigned to lost earnings, and the balance of the $28,000 settlement, or $24,400 must be assigned to loss of future earnings, and pain and suffering. All of the remainder cannot be apportioned to pain and suffering, and a substantial portion must be considered as an award for loss of future earning capacity. These facts bring plaintiff’s first claim within the purview of the above cited cases, and summary judgment should be granted to defendant on that cause of action upon the authority of those cases.

As to the second cause of action, or claim for relief, plaintiff attempts to make a contested issue of the resignation which was executed by the plaintiff as a part of the settlement transaction by alleging that there was an understanding at the time of the settlement that plaintiff’s employment status would not be affected by the settlement. If the validity of the resignation was the issue plaintiff would be correct in his contention, but, in making the contention, plaintiff misconceives the issue and misconstrues the basic premise behind the cases which prohibit recovery in this situation. The issue is whether plaintiff will be permitted to recover damages for a breach of contract of employment when he has already recovered damages for loss of future earning capacity from his employer *254 as the result of the settlement of a tort action against the employer for personal injuries. In Scarano, supra, the court said:

In Buberl, supra, the court said:

The validity of plaintiff’s resignation is immaterial and need not be considered on determination of the motion for summary judgment. For the purposes of the motion plaintiff’s claims will be treated as if he had not resigned. It is plaintiff’s attempted second recovery which is barred. This is fatal to both causes or claims.

Defendant’s motion for summary judgment is granted. Counsel for defendant shall prepare and present findings, conclusions and a judgment in accordance herewith.