358 F.2d 374 (3rd Cir. 1966), 15426, Brough v. Strathmann Supply Co.

Docket Nº:15426.
Citation:358 F.2d 374
Party Name:Alfred BROUGH, Appellant, v. STRATHMANN SUPPLY CO., Inc., and MERMAID POOLS, INC., Third-Party Defendant.
Case Date:March 29, 1966
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 374

358 F.2d 374 (3rd Cir. 1966)

Alfred BROUGH, Appellant,

v.

STRATHMANN SUPPLY CO., Inc., and MERMAID POOLS, INC., Third-Party Defendant.

No. 15426.

United States Court of Appeals, Third Circuit.

March 29, 1966

Argued Dec. 17, 1965.

Page 375

Jerome J. Verlin, Philadelphia, Pa. (David Cohen, Arthur M. Dolin, Philadelphia, Pa., on the brief), for appellant.

Joseph G. Manta, Philadelphia, Pa. (James M. Marsh, Philadelphia, Pa., LaBrum & Doak, Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, HASTIE and SMITH, Circuit Judges.

McLAUGHLIN, Circuit Judge.

In this personal injury negligence action at the end of plaintiff's case, on motion of the defense, a directed verdict was granted against the plaintiff and in favor of the defendant. The verdict was primarily based on the finding of no diversity of citizenship between the parties but the court also held that the amount in controversy did not exceed $10,000; that there was contributory negligence as a matter of law against plaintiff and that the latter had not presented prima facie proofs of negligence against the defendant.

The plaintiff, Alfred Brough, was a minor of the age of nineteen at the time the injury occurred. It was sustained by him as a result of the defendant's alleged negligence, on September 28, 1959 when plaintiff was working for the third party defendant in the construction of a private swimming pool at Holland, Pennsylvania. On that date, and up to the present, the plaintiff and the defendant were and are Pennsylvania residents. On September 6, 1961, Alvin H. Frankel, a New Jersey resident, was appointed guardian of Alfred Brough's estate by the Orphan's Court as Brough was still a minor. It was Frankel who brought the suit in the Federal District Court in his own name pursuant to 28 U.S.C.A. Federal Rules of Civil Procedure, rule 17(a) for the benefit of his minor ward who at the time was not made a party to the action.

At pretrial on December 15, 1964, plaintiff's attorney moved to amend the caption of the complaint to remove the guardian as plaintiff and substitute Alfred Brough in his own right as plaintiff. At this point the Court asked defense counsel whether he had any objection and the answer was 'No'. The motion was granted from the bench. A suggestion of plaintiff's majority was filed later. At the trial Brough was substituted in the title caption as plaintiff.

I. DIVERSITY

On the question of diversity the trial judge held that at the commencement of the action there was diversity since the guardian was a New Jersey resident and defendant was a Pennsylvania resident, but the removal of the guardian as plaintiff and replacing him with Brough as plaintiff resulted in a loss of diversity and therefore the court had no jurisdiction.

It is appellee's contention that the court was correct in this ruling because in effect what appellant accomplished was an amendment as opposed to a substitution and that since it was an amendment the court must look to the new parties to determine whether or not there is diversity. To support this proposition the appellee cites the case of Grady v. Irvine, 254 F.2d 224 (4 Cir. 1958). That case is readily distinguished from this suit because what was attempted there was an amendment which would change the nature of the action from one for personal injuries to a claim for

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wrongful death. The two are fundamentally different with different measures of damages. The Grady court held that since, not merely a new plaintiff had been introduced but also a new and distinct cause of action, the citizenship of the new plaintiff would determine diversity. That same opinion, however, recognized a distinction which is most relevant to this appeal when it stated, 'For purposes of federal jurisdiction, the requirement of diversity of citizenship is ordinarily determined by the situation existing at the time the action is commenced. Once federal jurisdiction has attached, it is not defeated by a subsequent change in the citizenship of one of the parties. Mollan (Mullen) v. Torrance, 9 Wheat. 537, 6 L.Ed. 154, nor by a formal substitution of a personal representative of nondiverse citizenship for an original party who dies while the cause is pending. Smith v. Sperling, 354 U.S. 91, 77 S.Ct. 1112, 1 L.Ed.2d 1205.' Supra, 254 F.2d p. 226. Appellee cites as further authority, Schwartz v. Metropolitan Life Insurance Co., 2 F.R.D. 167 (D.C., 1941). The case is inapposite for the same reasons as Grady v. Irvine, supra. It concerns an attempt made by a guardian, suing as representative of an insane ward, to introduce a personal action against defendant by means of substitution or, in the alternative, an amendment. The court held that Rule 25 did not provide for such substitution and that Rule 15(a) did not apply because a new cause of action was being brought in which the ward's beneficial interest was not involved. Here, at all times the suit has been on behalf of Alfred Brough, the exact same claim, both when the guardian was suing and when Brough himself became plaintiff.

Appellee argues that a new cause of action has been set up because the plaintiff is now attempting to recover for his medical...

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