Ashley v. READ CONSTRUCTION COMPANY

• Decision Date: 18 July 1961
• Docket Number: Civ. No. 4491.
• Citation: 195 F. Supp. 727
• Parties: Mildred ASHLEY, Administratrix of the Estate of Mary M. Virnig, deceased, Plaintiff, v. READ CONSTRUCTION COMPANY, a Wyoming corporation, and Robert E. Pyle, Defendants.
• Court: U.S. District Court — District of Wyoming

195 F. Supp. 727

Mildred ASHLEY, Administratrix of the Estate of Mary M. Virnig, deceased, Plaintiff, v. READ CONSTRUCTION COMPANY, a Wyoming corporation, and Robert E. Pyle, Defendants.

Civ. No. 4491.

United States District Court D. Wyoming.

July 18, 1961.

Louis A. Mankus, Cheyenne, Wyo., and Sander Cotlow, Azusa, Cal., for plaintiff.

Bard Ferrall, of Ferrall, Bloomfield, Osborn & Lynch, Cheyenne, Wyo., for defendants.

KERR, District Judge.

Mary M. Virnig, a resident of California, died on August 3, 1959, in Sweet-water County, Wyoming, as a result of a collision on the highway in Wyoming involving a truck owned by Read Construction Company, a Wyoming corporation. On October 27, 1959, the state Court of Sweetwater County, Wyoming, appointed a Wyoming resident, Raymond F. Venta, Administrator of decedent's estate. Subsequently, Mildred Ashley, a resident of California, was appointed by a California court as Administratrix of decedent's estate.

On March 21, 1961, and at a time when the Wyoming Administrator was still acting as the duly appointed and qualified Administrator of said estate in Wyoming, Mildred Ashley, as Administratrix of said estate in California, instituted this action under the Wyoming wrongful death statute for the recovery of damages for the death of Mrs. Virnig.

The defendants interpose this motion to dismiss, urging that the claim for wrongful death is vested in the Wyoming administrator, and that the California administratrix is not authorized to bring suit in the state of Wyoming under our wrongful death statute. In other words, defendants contend that the local Administrator is the real party in interest and the party in whose name the action should have been brought.

Section 1-1066, Wyoming Statutes 1957, provides: "Every such action shall be brought by, and in the name of, the personal representative of such deceased person; and the amount received in every such action shall be distributed to the parties and in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate. * * * The amount so recovered shall not be subject to any debts or liabilities of the deceased; * * *."

The pertinent statutes of Wyoming make it crystal clear that only the personal representative of the decedent may bring an action for her death caused by the wrongful act of another; that such action is brought, not to enhance the estate of the deceased, but to benefit those whom the state law ordains should share in the distribution of the deceased's estate as if she had died intestate; and that the amount recovered may not be tapped to pay the debts or liabilities of the deceased. See Tuttle v. Short et al., 42 Wyo. 1, 288 P. 524, 70 A.L.R. 106.

There is nothing whatever in this statute which indicates any intention on the part of the Wyoming legislature to exclude a non-resident administrator from acting as personal representative. Certainly he or she can resort to the federal court under diversity provisions of the Code. Memphis Street Railway Company v. Moore, Administrator of Douglas, 243 U.S. 299, 37 S.Ct. 273, 61 L.Ed. 733.

I think the statute upon which this action is brought was intended to provide a remedy not only for the citizens of this state but for the citizens of other states while passing through or residing within the state. The amount recovered under the statute is held by the personal representative for the persons entitled thereto. The whole import of the wrongful death act is to benefit those persons who have been injured because of the death of their relative. Stewart v. Baltimore & Ohio Railroad Company, 168 U.S. 445, 18 S.Ct. 105, 42 L.Ed. 537. It is not within the province of this court to qualify the statutory provision "personal representative" by interpolating the words "who is a resident of this state", or "who is...