Deposit Guaranty Bank & Trust Company v. Burton

• Decision Date: 13 June 1967
• Docket Number: No. 16957.,16957.
• Citation: 380 F.2d 346
• Parties: DEPOSIT GUARANTY BANK & TRUST COMPANY, Administrator of the Estate of Norman Lee Miller, Deceased, Plaintiff-Appellee, v. James Robert BURTON and David Milton Burton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

380 F.2d 346 (1967)

DEPOSIT GUARANTY BANK & TRUST COMPANY, Administrator of the Estate of Norman Lee Miller, Deceased, Plaintiff-Appellee, v. James Robert BURTON and David Milton Burton, Defendants-Appellants.

No. 16957.

United States Court of Appeals Sixth Circuit.

June 13, 1967.

Fred H. Cagle, Jr., Knoxville, Tenn., and R. Hunter Cagle, Knoxville, Tenn., Ben F. McAuley, Knoxville, Tenn., on brief; Poore, Cox, Baker & McAuley, Frantz, McConnell & Seymour, Knoxville, Tenn., of counsel for appellants.

William D. Vines, III, Knoxville, Tenn., William E. Fitzgerald, Ollie F. Cobb, Knoxville, Tenn., on brief for appellee.

Before WEICK, Chief Judge, and PHILLIPS and PECK, Circuit Judges.

PHILLIPS, Circuit Judge.

This is a Tennessee diversity case, involving an action for wrongful death brought by the administrator of the estate of the decedent. The jury returned a verdict of $50,000 in compensatory damages against appellants, and further found punitive damages of $50,000 against another defendant, Robert O. Ash, who has not appealed.

Two principal questions are presented on this appeal: (1) Is there diversity of citizenship between the parties so as to support the jurisdiction of the district court; and, (2) if so, was there sufficient material evidence to warrant the submission of the case to the jury as to appellants, James Robert Burton and David Milton Burton. Underlying these questions is the propriety of the action of the district judge in overruling appellants' motions for a directed verdict and for judgment non obstante veredicto?¹

The decedent, Norman Lee Miller, was a student at Middle Tennessee State University at Murfreesboro, Tennessee. He and several other students had made a trip to Cookeville, Tennessee, to attend a basketball game, but were not successful in obtaining tickets. While returning to their college, decedent and the other students stopped near Lebanon, Tennessee, to assist another motorist who was stranded on the shoulder of the highway with a flat tire.

Defendants had been drinking beer at several different establishments throughout the afternoon and evening of the accident and were on their way to another tavern when the accident occurred. Defendant Robert O. Ash was driving a 1952 Buick in which appellant James R. Burton was a passenger. Appellant David M. Burton, James Burton's brother, was driving a second car which was owned by James. One or both of these cars struck and killed the decedent. Three other persons at the scene of the accident were injured, and one of decedent's fellow students died of his injuries a few days later. This case involves only the death of the decedent Miller.

1) The Issue of Diversity of Citizenship

The complaint alleges, among other things, that plaintiff-appellee is a Mississippi Corporation with its principal place of business in Jackson, Mississippi; that it was appointed administrator of deceased's estate under T.C.A. § 35-610; and that all the defendants were citizens and residents of Tennessee.

The principal contention of appellants is that there is no diversity of citizenship since the appellee administrator, a Mississippi corporation, is not the real party in interest in a wrongful death action under Tennessee law. The gist of this contention is that the administrator is only a special statutory trustee and that the court should look to the citizenship of the real party or parties in interest in order to determine diversity, i.e., the citizenship of the Tennessee beneficiaries for whose benefit this action is brought. It is urged that both the beneficiaries and defendants are residents of Tennessee; and that there is no diversity of citizenship and therefore the court has no jurisdiction.

Although we find it necessary to reverse and remand on another ground, we proceed now to dispose of the issue of diversity of citizenship, for the assistance of the district judge in event of a new trial.

In support of this contention that there is no diversity of citizenship appellants cite numerous Tennessee Supreme Court decisions, which in essence hold that the administrator in a wrongful death action is not the real party in interest.²

The controlling question to be determined on this appeal, however, is whether under the laws of Tennessee the appellee administrator can sue in its own name to recover damages for the wrongful death of the decedent, and whether this is affected by the citizenship of the decedent or the beneficiaries. Mexican Central Railway Co. v. Eckman, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245.

In New Orleans v. Gaines Administrator, 138 U.S. 595, 606, 11 S.Ct. 428, 431, 34 L.Ed. 1102, the Supreme Court said:

"We have repeatedly held that representatives may stand upon their own citizenship in the federal courts irrespectively of the citizenship of the persons whom they represent, — such as executors, administrators, guardians, trustees, receivers, etc. The evil which the law was intended to obviate was the voluntary creation of federal jurisdiction by simulated assignments. But assignments by operation of law, creating legal representatives, are not within the mischief or reason of the law."

In Mexican Central Railway Co. v. Eckman, supra, the Supreme Court said:

"If in the state of the forum the general guardian has the right to bring suit in his own name as such guardian, and does so, he is to be treated as the party plaintiff so far as Federal jurisdiction is concerned. * * *" 187 U.S. at 434, 23 S.Ct. at 213.

In Chambers v. Anderson, 58 F.2d 151, 152 (C.A.6), this court said that "for the purpose of jurisdiction, the administratrix is the party in interest." Further in Memphis Street Ry. Co. v. Bobo, 232 F. 708, 710 (C.A.6), aff'd. 243 U.S. 299, 37 S.Ct. 273, 61 L.Ed. 733, we said:

"It is settled that the jurisdiction of the federal courts depends upon the personal citizenship of the parties to the record, and not upon the citizenship of the parties whom they represent."³

The administrator of the estate of decedent is authorized by Tennessee law to prosecute a suit for wrongful death in his own name. T.C.A. §§ 20-607 — 20-609. In this situation the citizenship of the administrator is controlling, since the personal representative is deemed to be the real party in interest. Rule 17(a) F.R.Civ.P.⁴ See Mecom v. Fitzsimmons Drilling Co., Inc., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233; Lang v. Elm City Construction Co., 324 F.2d 235 (C.A.2); Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (C.A.3); Jaffe v. Philadelphia & W. Ry. Co., 180 F.2d 1010 (C.A.3); Grady v. Irvine, 254 F.2d 224 (C.A.4), cert. denied, 358 U.S. 819, 79 S.Ct. 30, 3 L.Ed.2d 60; Nunn v. Feltinton, 294 F.2d 450 (C.A.5), cert. denied, 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784, rehearing denied, 369 U.S. 857, 82 S.Ct. 932, 8 L.Ed.2d 16; Harrison v. Love, 81 F.2d 115 (C.A.6); Stewart v. Patton, 32 F.Supp. 675, 677 (W.D.Tenn.); County of Todd v. Loegering, 297 F.2d 470 (C.A. 8); Minnehaha County, S. D. v. Kelley, 150 F.2d 356 (C.A.8); Boeing Airplane Co. v. Perry, 322 F.2d 589 (C.A.10), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472; Erwin v. Barrow, 217 F.2d 522 (C.A.10).

A subsidiary contention of appellants on the issue of diversity is that the plaintiff-appellee failed to prove that it was a foreign corporation with a principal place of business other than Tennessee.

Plaintiff alleged in its complaint that it had been appointed administrator of the decedent's estate pursuant to T.C.A. § 35-610. This was not denied and therefore stands admitted. Subsequently at trial plaintiff offered its letters of administration which were admitted into evidence. The district judge held that there was no question about the administrator being "legally appointed." For the plaintiff, a Mississippi bank, to be appointed as administrator under T.C.A. § 35-610, plaintiff was required to be organized under the laws of a State other than Tennessee with its principal place of business outside of Tennessee.⁵

The answer of defendant contains a general denial of diversity of citizenship but this denial, when read in its context, appears to be directed to the proposition that the administrator is not the real party in interest, an issue which we have discussed and disposed of above.

The pretrial order makes no issue as to the fact that the plaintiff is a Mississippi bank and that its principal place of business is other than Tennessee. We find no provision in the banking laws of Tennessee, T.C.A. Title 45, which would permit a bank chartered in another State to do a general banking business in Tennessee or to maintain its principal place of business in Tennessee. In order to be eligible to qualify under T.C.A. § 35-610, plaintiff-appellee of necessity must have been chartered in another State and must have had its principal place of business elsewhere than in Tennessee.

However, we do not find one scintilla of proof in the record to show that plaintiff in fact is a Mississippi corporation or that its principal place of business is elsewhere than Tennessee, which must be established as a prerequisite to maintaining an action based upon diversity of citizenship. 28 U.S.C. § 1332; Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed. 1111; KVOS, Inc. v. Associated Press, 299 U.S. 269, 277, 278...