Deupree v. Levinson, 11104.

• Decision Date: 22 December 1950
• Docket Number: No. 11104.,11104.
• Citation: 186 F.2d 297
• Parties: DEUPREE v. LEVINSON et al.
• Court: U.S. Court of Appeals — Sixth Circuit

186 F.2d 297 (1950)

DEUPREE v. LEVINSON et al.

No. 11104.

United States Court of Appeals Sixth Circuit.

December 22, 1950.

COPYRIGHT MATERIAL OMITTED

Robert S. Marx, Cincinnati, O., (Robert S. Marx, Frank E. Wood, Jr. and Harry M. Hoffheimer of Nichols, Wood, Marx & Ginter all of Cincinnati, Ohio, Garey & Garey, New York, N. Y., on the brief) for appellant.

Charles Lester, Jr. Newport, Ky., for appellees.

Chas. E. Lester, Jr. of Lester & Riedinger, Newport, Ky., on the brief, for Louis Levinson appellee.

Marion W. Moore, of Blakely, Moore & Blakely, Covington, Ky., on the brief, for Mitchell A. Hall appellee.

Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

The principal question presented by this appeal is whether admiralty cases are controlled by the decisions of state courts. The appeal arises out of a judgment of the United States District Court for the Eastern District of Kentucky which dismissed a libel in admiralty. The libel prayed for damages for the alleged wrongful death of Katherine Wing, a resident of New York State, who died June 19, 1948, as the result of a boat collision on the Ohio River in Campbell County, Kentucky. Appellee Levinson's answer admitted that Miss Wing was a passenger in a motorboat owned and operated by him on the date named. The libel averred that a motorboat owned and operated by appellee Hall collided with the motorboat operated by appellee Levinson, as a result of negligent, willful and malicious conduct on the part of both appellees which caused injuries resulting in decedent's death.

The libel, filed December 7, 1948, set forth that a domiciliary administratrix had been appointed in New York State on October 22, 1948, and that appellant had been appointed ancillary administrator by the Kenton County, Kentucky, court on December 7, 1948. Answers in the nature of general denials were filed March 23, 1949. Appellees then moved for an order requiring appellant to give security for all costs and expenses which might be awarded against them. On July 7, 1949, after the one-year period of limitation had run, § 413.140, KRS, appellant filed an affidavit for leave to sue in forma pauperis, which stated that "Libelant's decedent was possessed of no estate out of which costs or expenses herein can be paid or from which security therefor can be given." Special demurrers were filed upon the ground that the court had no jurisdiction to try the action; that the court had no jurisdiction over the subject matter of the action; and that appellant had not legal capacity to sue. The special demurrers were sustained, but the court granted appellant leave to file an amended libel. On July 29, 1949, an amended libel was filed which alleged that on July 28, 1949, appellant was appointed ancillary administrator in Campbell County, and that the libel was filed by him in such capacity. Other than this new allegation, the cause of action stated in the amended reply was identical with that originally stated. General demurrers were filed to the amended libel on the ground that it did not "state facts sufficient to constitute or support a cause of action." The court sustained the demurrers and dismissed the amended libel for reasons stated in a memorandum, which reads as follows:

"The general demurrer should be sustained. While this claim for wrongful death is prosecuted in admiralty the law of Kentucky must control and the state wrongful death statute is the authority for the libel. The provisions of a state statute giving or regulating rights of action for death shall not be affected by the enabling admiralty procedure statutes. 41 Stat. 538; 46 F.C.A. 767 46 U.S.C.A. § 767.

"Under the Kentucky authorities the appointment of William Deupree, Jr., as ancillary administrator by the Kenton County Court was void. The amendment setting up his subsequent appointment by the Campbell County Court, shown on the face of the record to be more than a year after the alleged wrongful death cannot relate back to the inception of the libel proceeding and the claim is barred. Vassill's Adm'r, etc. v. Scarsella, 292 Ky. 153, 166 S.W.2d 64; Jewell Tea Co. v. Walker's Adm'r, 290 Ky. 328 161 S.W.2d 66."

Appellant contends that the District Court erred in holding (1) that decedent had no property within the state for payment of or security for possible costs or expenses; and (2) that the Kentucky decisions cited are controlling and require dismissal of the action. Appellees urge that both the Kentucky decisions and the holding of the Supreme Court in Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, require affirmance.

As to the first point, the District Court, in ruling on the special demurrers, held that the appointment of an ancillary administrator by the Kenton County court was void because appellant's affidavit in forma pauperis stated that the decedent had no property within the state for payment of or security for possible costs or expenses.

Assuming, but not deciding, that the District Court upon demurrer could consider the affidavits filed with the application to proceed in forma pauperis, this record clearly shows that there is an asset of the estate sufficient to support a grant of letters of administration. It is not necessary that the assets relied upon as a basis for local administration should be tangible. A mere claim or right of action enforceable within the jurisdiction, such as the present death action, will support a grant of administration. This is the established law of Kentucky. Chesapeake & Ohio Ry. Co. v. Ryan's Adm'r, 183 Ky. 428, 209 S.W. 538. In this case the intestate received the injury resulting in his death in Carter County, Kentucky, but died in West Virginia. The Court of Appeals held that the Carter County court had jurisdiction to appoint the plaintiff as administrator, notwithstanding the intestate was a non-resident of Kentucky, his death occurred in another state, and he left no property or indebtedness due him in Kentucky other than his right of action. Cf. Austin's Adm'r v. Pittsburgh C., C. & St. L. Ry. Co., 122 Ky. 304, 91 S.W. 742, 743, 5 L.R.A.,N.S., 756, which held that where a non-resident has been killed in Kentucky by the tort of another, administration upon the estate of the non-resident decedent will be granted in Kentucky, because the statute which gives the right of action to the estate of the decedent for his death "ex necessitate rei" confers jurisdiction by implication to appoint an administrator to prosecute the suit.

In Brown's Adm'r v. Louisville & N. R. Co., 97 Ky. 228, 232, 30 S.W. 639, the court declared that the county where the decedent was injured and died was the proper county to grant administration; later Chesapeake & Ohio Ry. Co. v. Ryan's Adm'r, supra, 183 Ky. at page 430, 209 S.W. 538, held that the occurrence of the injury alone is sufficient. The appointment in Campbell County, then, is supported by the existence of an asset, namely, a cause of action alleged to have arisen in Campbell County.

But since the first ancillary administrator was appointed not in Campbell County, but in Kenton County, the District Court held that appointment to be void under Kentucky law and not cured by the appointment in Campbell County after the statute of limitations had run. As to this feature of the decision, appellant contends that the District Court erred in its construction of the Kentucky law and in holding that Vassill's Adm'r v. Scarsella, 292 Ky. 153, 166 S.W.2d 64, and Jewel Tea Co. v. Walker's Adm'r, 290 Ky. 328, 161 S.W.2d 66, are decisive. He urges that the Kentucky courts have held that defective appointments of this kind are not void, but voidable. We think, however, that if the decisions of the Kentucky courts are to be applied in this admiralty case, the judgment of the District Court must be affirmed. The critical question, therefore, is whether the decisions of the state court are controlling, or whether the federal and admiralty law should be applied.

Upon this question we start with the basic proposition that this case is not grounded upon diversity of citizenship. As to diversity cases, "a federal court adjudicating a State-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State * * *." Guaranty Trust Co. of New York v. York, supra, 326 U.S. at page 108, 65 S.Ct. at page 1469. This was a case which applied the rule of Erie R. Co., v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 in an equity case involving the applicability of a state statute of limitations. If this holding governs in admiralty cases, the District Court was clearly correct in dismissing the action herein. But, as recently pointed out by the Supreme Court, the decision in Erie R. Co. v. Tompkins relates "only to the law to be applied in exercise of that diversity jurisdiction". United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 1608, 91 L.Ed. 2067. Compare the statement made by Mr. Justice Jackson in his concurring opinion in D'Oench, Duhme & Co., Inc. v. Federal Deposit Ins. Corp., 315 U.S. 447, 467, 62 S.Ct. 676, 683, 86 L.Ed. 956, that "The Court has not extended the doctrine of Erie R. Co. v. Tompkins beyond diversity cases."

41 Stat. 538, 46 U.S.C.A. § 767 46 F.C.A. 767, cited in the District Court's memorandum (46 U.S.C. § 767), sheds no light upon the problem. It relates to actions for death on the high seas, and does not cover actions arising, as this, upon navigable rivers. Viewing the question as an open one, therefore, not ruled upon by the Supreme Court, we look to the practice in the federal and admiralty courts for guidance.

It is a long-established rule in the federal courts that administrators are permitted to secure and perfect ancillary administration in states where the decedents were non-residents, even after the running of the statute of limitations. A lack of...