Anderson v. Lane

• Decision Date: 03 May 1951
• Docket Number: Civ. A. No. 2667.
• Citation: 97 F. Supp. 265
• Parties: ANDERSON v. LANE.
• Court: U.S. District Court — District of South Carolina

97 F. Supp. 265

ANDERSON v.LANE.

Civ. A. No. 2667.

United States District Court E. D. South Carolina, Aiken Division.

May 3, 1951.

J. Strom Thurmond, Charles E. Simons, Jr., Thurmond, Lybrand & Simons, Aiken, S. C., for plaintiff.

P. F. Henderson, Henderson & Salley, Aiken, S. C., for defendant.

TIMMERMAN, District Judge.

Homer E. Anderson, a citizen of Georgia, having been appointed by the Probate Judge of Aiken County, South Carolina, to be the administrator of the estate of his deceased wife, Virginia H. Anderson, brought this action in the District Court of the Eastern District of South Carolina, Aiken Division, against Lida E. Lane, a citizen of South Carolina, for $25,000 in damages on account of the alleged wrongful death in Georgia of his said wife.Although the original complaint did not in terms so state, it was evidently brought for the benefit of the husband alone.The federal jurisdiction was predicated on the alleged diversity of citizenship between Anderson and Miss Lane, and the fact that the amount in controversy is more than $3,000.

The defendant by her answer raised five defenses, the last two of which were upon the question of liability and need not now be considered.The first defense, which is now under consideration, raises the vital contention that Anderson as administrator has not the capacity or authority to bring and maintain the present action, because, as defendant alleges, Virginia H. Anderson left surviving her not only her husband, Homer E. Anderson, but two children by a former marriage, Joseph D. Cribb and Barbara Ann Cribb, who are citizens of the State of South Carolina, and that the fatal accident and resultant death of Virginia H. Anderson, the wife of Homer E. Anderson and the mother of Joseph D. Cribb and Barbara Ann Cribb, having occurred in Georgia that under the governing statutory laws of Georgia which alone give a right of action, that any action based on her death must be brought jointly and not separately by the husband and children, suing thus jointly, and cannot be brought and maintained by an administrator.

The second and third defenses were to the effect that the complaint herein, if maintainable at all, under the facts alleged must state that the action is for the benefit of Anderson and the Cribb children, as the husband and the children respectively of Virginia H. Anderson.In response to the second and third defenses the plaintiff in due time amended his complaint by so alleging, hence these defenses are no longer pertinent.

Acting under Section 12(d) of the Rules of Civil Procedure,28 U.S.C.A., a hearing was granted upon the preliminary questions raised by the defendant's first defense of whether there is herein a lack of jurisdiction over the subject matter and a failure to state a claim upon which relief can be granted, which involves the question of whether the present action for damages for the alleged wrongful death of his wife may be brought and be maintained by Homer E. Anderson, as administrator.

At the hearing counsel agreed, and I find that the salient facts are that Virginia H. Anderson was killed while riding in an automobile owned and driven by the defendant, Lida E. Lane, in the City of Augusta, State of Georgia, on the 6th day of October 1950; that the plaintiff claims that the fatal accident was brought about by negligence, willfulness and wantonness on the part of the defendant, and that Homer E. Anderson, a citizen of Georgia, is the husband, and that Joseph D. Cribb and Barbara Ann Cribb, citizens of South Carolina, are the only children of the said Virginia H. Anderson.It is further a fact that the applicable provisions of the Statute of the State of Georgia,Annotated Code of Georgia, Sec. 105-1306,Civ.Code 1910, § 4424 reads as follows: "Homicide of wife or mother.—The husband and/or child or children may recover for the homicide of the wife or mother, and those surviving at the time the action is brought shall sue jointly and not separately, with the right to recover the full value of the life of the decedent, as shown by the evidence, and with the right of survivorship as to said suit, if either shall die pending the action.(Acts 1887, pp. 43, 45;1939, p. 233.)"

The essential question to be decided herein is whether the applicable section of the Georgia Code providing, to phrase it in terms of this case, that the husband and children of the deceased "shall sue jointly and not separately", and which constitutes the lex loci of the alleged wrongful death in question, controls, or whether under the provisions of the applicable South Carolina statute, which constitutes the lex fori and which vests the right of action in an administrator, he may sue.

A multitude of decisions, both by federal and state courts, have dealt with the general question of the applicability of the lex loci or of the lex fori, as have numerous text books.

The foremost decisions of the Supreme Court of the United States upon the subject are Northern Pacific Railroad v. Babcock, 154 U.S. 190, 14 S.Ct. 978, 38 L. Ed. 958;American Railway Company of Porto Rico v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879;Winfree, as administrator, v. Northern Pacific Railroad, 227 U. S. 296, 33 S.Ct. 273, 57 L.Ed. 518;Spokane & Inland E. Railway Co. v. Whitley, 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060;andVancouver Steamship Company, Ltd. v. Rice, 288 U.S. 445, 53 S.Ct. 420, 77 L. Ed. 885.These decisions are definitely to the effect that the lex loci governs as to all matters that may be considered to be substantive and which create and effect the right to sue; but that as to any matters that may be considered to be merely procedural the lex fori will govern.

To the foregoing list of applicable decisions of the United States Supreme Court the following decisions by Courts of Appeal and District Courts of the United States upon the general question involved may be added, namely, Kleckner v. Lehigh Valley Railroad, D.C., 36 F.Supp. 600;Carter v. Pennsylvania Railway Co., D.C., 9 F.R.D. 477;La Salle Nat. Bank v. Pennsylvania R. Co.(Cagle v. Pennsylvania Railway Co.)D.C., 8 F.R.D. 316;Reynolds v. Cincinnati, N. O. & T. P. Railroad Co., D.C., 7 F.R.D. 165;Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 162 A.L.R. 318;Smith v. Bevins', D.C., 57 F.Supp. 760;Suders v. Campbell, D.C., 73 F.Supp. 112;andPirnie v. Andrews, D.C., 30 F.Supp. 157.

The general subject in hand has also been considered and adjudged by the Supreme Court of South Carolina in Dennis v. Atlantic Coast Line Railway Co., 70 S.C. 254, 49 S.E. 869;Morrow v. Atlantic & C. Air Line Railway Co., 84 S.C. 224, 66 S.E. 186;Smith v. Southern Railway Co., 87 S.C. 136, 69 S.E. 18;andRauton v. Pullman Co., 183 S.C. 495, 191 S.E. 416; and the following decisions from other states may be added to the already impressive list, namely, Usher v. West Jersey Railroad Co., 126 Pa. 206, 17 A. 597, 12 Am.St.Rep. 863;Oates v. Union Pacific Railway, 104 Mo. 514, 16 S.W. 487, 4 L.R.A. 261, 24 Am.St. Rep. 348;McGinnis v. Missouri Car & Foundry Company, 174 Mo. 225, 73 S.W. 586, 97 Am.St.Rep. 553; and Dickinson, Administrator v. Jones, 309 Pa. 256, 163 A. 516, 85 A.L.R. 1226.

All of the decisions arrive at the definite conclusion that all substantive questions are governed by the lex loci, with such merely procedural matters as may arise being governed by the lex fori.The pivotal question involved in this inquiry then is whether with the Georgia CodeSection involved providing, as applied to this instant case, that the husband and children "shall sue jointly", a substantive requirement is presented, or whether the question of who shall sue is merely procedural.

The opinion of the Court of Appeals of the 4th Circuit rendered by Judge Parker in Betts v. Southern Railway, 71 F.2d 787, 789, is illumining.In the Betts case a resident of North Carolina had been killed in Virginia.The resultant action was brought in a United States District Court of North Carolina.As to the very question involved in the present matter, the Court ruled that the question of who might maintain the action, that is to say the party in whom that right is vested is a substantive right.The decision succinctly and authoritatively ruled as follows: "All matters pertaining to the substantive right of recovery under a wrongful death statute, including the right to recover, the nature of the right, and the party in whom it is vested, are governed by the law of the state where the injury resulting in death occurred.Ormsby v. Chase, 290 U.S. 387, 54 S. Ct. 211, 78 L.Ed. 378;8 R.C.L. 737."

In the Betts decision, the Court of Appeals cited the decision of the Supreme Court of the United States in Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378.An examination of that decision reveals the fact, of course, that the question of who may sue, in a death case, is denominated by the Supreme Court therein as a "substantive right" which right can be given only by the lex loci.To the same effect is the decision of the Court in Kleckner v. Lehigh Valley Railway Co., D.C., 36 F.Supp. 600, and the text of 25 C.J.S., Death, § 28, p. 1101, and 11 Am.Jur., p. 500, Sec. 187.No right to sue, at all, exists or survives unless the lex loci confers that right, and its substantive provisions must be complied with.

Plaintiff's counsel in opposition to the defense in question rely...