Bush v. Carpenter Brothers, Inc.

• Decision Date: 21 September 1971
• Docket Number: No. 30451.,30451.
• Citation: 447 F.2d 707
• Parties: Charles H. BUSH, Administrator of the Estate of Thomas Royce Bush, Deceased, et al., Plaintiffs-Appellants, v. CARPENTER BROTHERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

447 F.2d 707 (1971)

Charles H. BUSH, Administrator of the Estate of Thomas Royce Bush, Deceased, et al., Plaintiffs-Appellants, v. CARPENTER BROTHERS, INC., Defendant-Appellee.

No. 30451.

United States Court of Appeals, Fifth Circuit.

August 20, 1971.

Rehearing Denied September 21, 1971.

Clyde Hurlberg, Biloxi, Miss., George D. Maxey, Laurel, Miss., Hurlbert & O'Barr, Biloxi, Miss., Maxey & Clark, Laurel, Miss., for plaintiffs-appellants.

Cary E. Bufkin, Jackson, Miss., Bruce C. Aultman, Hattiesburg, Miss., Satterfield, Shell, Williams & Buford, Jackson, Miss., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge and GEWIN and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This is a wrongful death action brought under the laws of the State of Mississippi. A judgment was entered on a verdict in the amount of $10,000 in favor of the plaintiffs. The plaintiffs appeal, contending that there was an absence of complete diversity of citizenship between the parties and, consequently, that the district court lacked jurisdiction. In the alternative, plaintiffs contend that the district court erred in failing to grant a new trial on the ground that it erred in a portion of its charge to the jury and that the verdict was so grossly inadequate as to evince bias, passion, and prejudice on the part of the jury. The defendant cross-appeals, contending that the district court erred in failing to grant its motion for a directed verdict. We reverse and remand for a new trial.

The decedent, Thomas Royce Bush, was at the time of his death, employed by the Blount Brothers Corporation and engaged as a welder inside a Saturn 1-C Missile Test Stand at the eleventh level, which was being constructed for NASA in Hancock County, Mississippi. The defendant, Carpenter Brothers, Inc., was engaged in the installation of certain machinery on the same level which required that the grating floor of the platform deck be partially removed. This platform was under the joint occupancy of both Blount and Carpenter.

On the morning of the accident, two Carpenter employees, one F. O. Merrill, the dismissed defendant herein, and another unnamed employee, removed a section of grating from the deck of the platform in order to perform certain work. As a safety precaution two ropes were tied across each of the two entrances to the platform. At 9:30 on the morning in question, decedent Bush left the area in which he was working in the test stand to go outside for his morning break. He stepped onto the platform and fell through the opening where the grating had been removed to his death 165 feet below.

On September 18, 1967, letters of administration were issued by the Chancery Court of Jones County, Mississippi, to Charles H. Bush, the decedent's brother, as administrator of the estate of Thomas Royce Bush, authorizing him to collect and administer a claim against Carpenter Brothers for the wrongful death of the decedent.¹ This suit was initially brought in the Jones County Chancery Court by writ of attachment for the wrongful death of the decedent under the Mississippi wrongful death act. Section 1453, Mississippi Code of 1942, Recompiled, as amended.² The suit was brought by Charles H. Bush, as the administrator of the decedent's estate and individually, and by the decedent's other beneficiaries under the wrongful death act: Mrs. Murtie Belle Bush Eubanks, Mrs. Betty Bush Eubanks, Edmond A. Bush, Joseph C. Bush and Mrs. Kathryn Bush Amico, against Carpenter Brothers, Inc., a Texas corporation, and F. O. Merrill, a resident citizen of the State of Louisiana. The complaint alleged that Mrs. Amico was a resident citizen of Louisiana and that the other beneficiaries were all citizens of Mississippi.³

The defendants removed this case to federal district court. The plaintiffs filed a motion to remand on the ground that no complete diversity existed between the parties and Merrill filed a motion to dismiss the suit as to him for lack of personal jurisdiction under the Mississippi Long Arm Statute, Section 1437, Mississippi Code of 1942, Recompiled, as amended.⁴ The district court denied the motion to remand, holding that the residence of the administrator controls for purposes of determining diversity jurisdiction, and granted Merrill's motion to dismiss, holding that "a one-time tort of an employee acting in the scope of his employment is not the kind of action to which Mississippi has extended the reach of its long-arm statute".

At the trial, the plaintiffs took the position that Carpenter Brothers had failed to comply with the safety requirements of its contract with the U. S. Army Corps of Engineers in that a rope barricade was used to guard the opening on the platform deck instead of a wooden barricade. Carpenter Brothers claimed that it had complied with the contract; that its rope barricade was in compliance with the safety provisions in question, and, further, that the use of the rope was known to and approved by the Corps of Engineers inspectors, before and after the fall.

It is well established that where the personal representative of the decedent is authorized by statute to bring suit to recover for the death of his decedent, he is the real party in interest, within the meaning of that term as used in Rule 17(a), Federal Rules of Civil Procedure, 28 U.S.C.A., and that his residence will be looked to in determining the existence of federal diversity jurisdiction in the ordinary case. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233 (1931); Deposit Guaranty Bank & Trust Company v. Burton, 6 Cir. 1967, 380 F.2d 346; Hordge v. Yeates, S.D.Miss., 1957, 157 F.Supp. 411. But see, Bass v. Texas Power & Light Company, 5 Cir., 1970, 432 F.2d 763. It is thus clear that if the administrator alone were asserting this action, his citizenship, and not the parties he represents, would be determinative of diversity jurisdiction. Since the administrator is a citizen of Mississippi and both Carpenter Brothers and Merrill are citizens of states other than Mississippi, there would be no question that diversity is present here.

In this case, however, the beneficiaries under the wrongful death act were joined individually as plaintiffs. If their citizenship must be considered, diversity meets a certain death if we hold that Merrill was erroneously dismissed and faces an uncertain future regardless in view of the fact that one of the beneficiaries might have been a citizen of Texas when the case was removed.

The Mississippi wrongful death statute is written in the disjunctive, providing that either the personal representative of the decedent or the beneficiaries may bring suit for the death of the decedent.⁵ See Southern Pine Electric Power Ass'n v. Denson, 214 Miss. 397, 59 So.2d 75, 76 (1952), where the court said:

* * * under Section 1453, Code of 1942, either the administrator of E. J. Stringer, deceased, or his wife, Mrs. Stringer, would have been entitled to bring suit if she had survived him, * * * (Emphasis supplied).

In this case, the administrator was appointed for the sole purpose of pursuing a claim for wrongful death against Carpenter Brothers and is in sole control of this litigation. The other beneficiaries have never participated in this litigation in any manner other than to lend their names, as parties plaintiffs, to the complaint. In view of these factors, it is our conclusion that a suit for wrongful death must, under Mississippi law, be either brought by the personal representative of the decedent or by the statutory beneficiaries and not by the personal representative and the beneficiaries jointly; that Charles H. Bush, the administrator of the decedent's estate, was, under the facts here, the actual plaintiff; and that the residence of the beneficiaries should therefore be disregarded for the purpose of determining diversity jurisdiction.

We next must consider whether the district court erred in dismissing the defendant Merrill for lack of personal jurisdiction under the Mississippi long-arm statute, supra. In the recent case of Dawkins v. White Products Corporation, 5 Cir., 1971, 443 F.2d 589, this court held that where an electric hot water heater, which exploded while being used in the State of Mississippi, was manufactured in Michigan and Ohio and placed in the stream of interstate commerce ultimately to be sold to the plaintiffs by a retailer in Mississippi, "that the Mississippi Supreme Court * * * would permit service on the non-residents under the amended long-arm statute". (p....