Blackwell v. Vance Trucking Company
| Decision Date | 05 March 1956 |
| Docket Number | Civ. A. No. 4857. |
| Citation | 139 F. Supp. 103 |
| Court | U.S. District Court — District of South Carolina |
| Parties | William H. BLACKWELL, as Guardian ad Litem for Stuart Nerzig, an infant, Plaintiff, v. VANCE TRUCKING COMPANY, Incorporated, Defendant. |
H. E. Yarborough, Jr., Florence, S. C., for defendant.
In this action, which grows out of a collision between two motor vehicles, the defendant, appearing specially, has filed (1) a motion to set aside the service of the summons and complaint, and (2) a motion to dismiss the action for improper venue.
On casual examination it appears that the first of these motions involves the question as to whether the plaintiff has sued the right person rather than a question as to the validity of service. If this be true then the question of whether the action should be dismissed as to the named defendant could not be determined on motion but only after a full development of the apparently disputed facts as to the ownership and use of the vehicle involved in the accident. The motion to set aside the service of the summons and complaint will therefore be denied.
The motion to dismiss the action for lack of proper venue raises an interesting question arising from the following facts: On July 21, 1953, one Stuart Nerzig, a resident of the State of New York and a minor, was injured in a collision between an automobile in which he was riding and a truck owned and operated by a resident of North Carolina. The accident took place on a public highway in Dillon County, South Carolina.
The action is instituted by "William H. Blackwell, as Guardian ad Litem for Stuart Nerzig, an infant." William H. Blackwell is an attorney who is a citizen and resident of South Carolina and the complaint alleges that he has been duly appointed by this court as the guardian ad litem to represent Nerzig, an infant. While it is not specifically so alleged, it is clear that diversity of citizenship is the ground upon which plaintiff seeks the jurisdiction of the federal court.
The defendant's attack upon the venue rests on the venue statute and upon the provisions of Rule 17 of the Rules of Civil Procedure, 28 U.S.C. The first of these, 28 U.S.C. § 1391(a) provides that:
"A civil action where jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside."
The pertinent portions of Rule 17 are as follows:
The contention of the defendant is that Stuart Nerzig, the injured person, is the real party in interest as plaintiff, and that venue must be laid, either in New York, where the real plaintiff resides, or in North Carolina, where the defendant resides. While conceding that an infant can sue only by a next friend or similar representative, the defendant urges that the venue of the action is to be determined by the residence of the infant, the real party in interest.
The counter contention of the plaintiff may be summed up in the following language from a brief submitted by his counsel: "The plaintiff relies upon the South Carolina citizenship of William H. Blackwell, the Guardian ad Litem for the infant, Stuart Nerzig (N. Y. Citizen) to make proper venue here in the United States District Court for the Eastern District of South Carolina."
The question before the court, therefore, is this: can an infant residing in one state cause a guardian ad litem or next friend to be appointed in another state for the purpose of bringing suit in the second state and thereby create venue in the federal court in such second state based solely on the residence of the guardian ad litem or next friend? I am of opinion that he cannot.
The writer, who is not a resident of South Carolina and is sitting in this court by assignment, must confess that at the outset he faces several questions which are novel in his experience. First of all he is not familiar with any proceeding whereby a guardian ad litem may be appointed before a suit is instituted — which it would seem must be necessary if the guardian ad litem is to bring the action. In the second place the writer's experience and practice has been that guardians ad litem are appointed by the court only after a suit has been brought and for the purpose of protecting the interests of an infant (or other person under disability) who has been made a defendant in the suit. Certainly this appears to be the traditional function of the office. In 1 Bouvier's Law Dict., Rawle's Third Revision, p. 1390 we find the following definition and attending comment:
And in 27 Am.Jur. p. 840, Sect. 120.
"The legal representative of an infant in making defense to an action was called at the common law his guardian ad litem, and this term is preserved in modern practice."
Further in the same discussion (p. 842) it is said:
"The court, however, can appoint a guardian ad litem only when the infant is a party defendant."
To the same effect are cases cited in an annotation in 9 A.L.R. 1537. In one of these (Tucker v. Dabbs, 59 Tenn. 18) it is said that the distinction between a next friend and a guardian ad litem is that the former is admitted by the court to prosecute a suit in the name and behalf of an infant plaintiff, whereas the guardian ad litem is appointed by the court to defend a suit against an infant defendant.
However it appears that in some jurisdictions the term is used (synonymously with next friend) to represent the person by whom an infant may institute a suit, and it must be said that the language of Rule 17(c) providing that an infant may sue by a next friend or by a guardian ad litem seems to abolish the traditional distinction between the functions of the two, and to give countenance to the practice of designating the representative of an infant plaintiff as a guardian ad litem. However this seems to resolve into a mere matter of nomenclature, for nothing in the rules changes the essential nature of a guardian ad litem.
It is in the failure to take note of these essential functions of a guardian ad litem and of the limitations upon his powers and duties that counsel for the plaintiff has fallen in error. He relies upon the rule that, generally speaking, when a suit is brought by an executor or administrator it is the citizenship of the executor or administrator which is controlling on the question of diverse citizenship, and not that of beneficiaries of the estate, and that the same is ordinarily true of trustees and of receivers. There is no question that this principle is generally accepted. See Dobie on Federal Procedure pp. 193-194 and cases there cited.
But this is because executors, administrators and these other named representatives are the real parties in interest. Executors and administrators are invested with the power and duty to take into custody the assets of the estate and to manage and preserve such assets; to institute and defend suits in behalf of the estate and generally to control and handle the property of the estate. Also it is generally true that executors and administrators alone can bring actions for the benefit of the estate. See 21 Am.Jur. pp. 485, 897. Corresponding powers and duties rest in trustees of an express trust and in general guardians of those under disability. A general guardian is invested with the power and has the duty of taking charge of and managing the property of an incompetent. 28 C.J. 1058 defines the guardian of an infant as "one who legally has the care and management of the person or the estate, or both, of a child, during his minority." See, also, 39 C.J.S., Guardian and Ward, § 1.
But a guardian ad litem is something quite different. He is appointed for the mere temporary duty of protecting the legal rights of an infant in a particular suit and his duties and his office end with that suit. He is not a party in interest in the suit, no property comes into his hands, and he has no powers nor duties either prior to the institution of the suit or after its termination.
The plaintiff relies on the case of Mexican Central Ry. Co. v. Eckman, 187 U.S. 429, 23 S.Ct. 211, 213, 47 L.Ed. 245, for support for his position. In that case a guardian brought suit in his own name in Texas in a district of which he was resident but in which neither his ward nor the defendant resided. In that respect the facts duplicate those in the instant case. But a vital difference is that in the Eckman case the plaintiff was a general guardian. The court makes this abundantly clear in upholding his right to sue in the district of his own residence. After first stating that it was "admitted that Eckman was duly appointed guardian of both the person and estate of (the infant) Huesselmann", the...
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