Campbell v. Pacific Fruit Express Company
Decision Date | 04 February 1957 |
Docket Number | No. 3274.,3274. |
Citation | 148 F. Supp. 209 |
Parties | Larue R. CAMPBELL, as an individual; Scott Campbell and Barrie Campbell, both minors, who sue by their guardian ad litem, Larue R. Campbell, Plaintiffs, v. PACIFIC FRUIT EXPRESS COMPANY, a corporation, Defendant. |
Court | U.S. District Court — District of Idaho |
John T. Hawley of Hawley & Hawley, Boise, Idaho, for plaintiffs.
L. H. Anderson, Pocatello, Idaho, for defendant.
This matter is before the Court on the defendant's motions to dismiss and for a summary judgment. The Court's jurisdiction is based on diversity of citizenship, as the plaintiffs are citizens of Idaho and the defendant is a Utah corporation. 28 U.S.C.A. § 1332.
On December 27, 1955, while E. Carvell Campbell, a salesman for the Denver Fire Clay Company, was inspecting an annealing furnace located on the defendant's premises at Nampa, Idaho, he was struck and fatally injured by the furnace door. His widow and two of his sons bring this action under Idaho's wrongful death statute, § 5-311, Idaho Code. Brent Kirkham Campbell, another of decedent's sons, and a citizen of Utah, is not a party to this action. The defendant contends that the suit should be dismissed because all of the real parties in interest are not joined as parties plaintiff, and because it was a statutory employer of decedent, and, therefore, not subject to an action under the wrongful death statute.
The absence of an indispensable party is ground for dismissal of the action. Ducker v. Butler, 70 App.D.C. 103, 104 F.2d 236, 238; Neher v. Harwood, 9 Cir., 128 F.2d 846, 847, 158 A.L.R. 1116; Keegan v. Humble Oil & Refining Co., 5 Cir., 155 F.2d 971, 973; Young v. Garrett, D.C.Ark.1943, 3 F.R.D. 193, 194, affirmed, 8 Cir., 149 F.2d 223; 2 Barron and Holtzoff, § 516.
"" Young v. Powell, 5 Cir., 179 F.2d 147, 151, certiorari denied 339 U.S. 948, 70 S.Ct. 804, 94 L.Ed. 1362.
Joinder of parties is a matter of procedure. 1 Barron and Holtzoff, § 138. In diversity of citizenship cases the procedure is governed by the federal rules. Ibid., 1956 Pocket Part. In § 511 the authors state that Rule 19, Federal Rules of Civil Procedure, 28 U.S.C.A., is procedural and consequently the joinder of parties and the determination of what parties are indispensable are matters governed by the rules and not by state law. See: Chicago, M., St. P. & P. R. Co. v. Adams County, 9 Cir., 72 F.2d 816, 818; De Korwin v. First Nat. Bank of Chicago, 7 Cir., 156 F.2d 858, 860, certiorari denied 329 U.S. 795, 67 S.Ct. 481, 91 L.Ed. 680; Cowling v. Deep Vein Coal Co., 7 Cir., 183 F.2d 652, 656; New England Mut. Life Ins. Co. v. Brandenburg, D.C.N.Y.1948, 8 F.R.D. 151, 154; Ford v. Adkins, D.C.Ill.1941, 39 F.Supp. 472, 474; Fremon v. W. A. Sheaffer Pen Co., D.C.Iowa 1953, 111 F.Supp. 39, 49. But it has been held that the question of the indispensability of parties is governed by state rather than federal law, when the rights of the parties depend upon substantive law. 1 Barron and Holtzoff, § 511, 1956 Pocket Part.
Dunham v. Robertson, 10 Cir., 198 F.2d 316, at page 319.
See, also: Kroese v. General Steel Castings Corporation, 3 Cir., 179 F.2d 760, 15 A.L.R.2d 1117, certiorari denied 339 U.S. 983, 70 S.Ct. 1026, 94 L.Ed. 1386; Whittemore v. Continental Mills, D.C.Mo. 1951, 98 F.Supp. 387, 391; Hertz v. Record Pub. Co. of Erie, D.C.Pa.1952, 102 F.Supp. 689, 690; Baker v. Dale, D.C. Mo.1954, 123 F.Supp. 364, 367; Valley Forge Golf Club v. L. G. De Felice & Son, D.C.Pa.1954, 124 F.Supp. 873, 875.
Section 5-311, Idaho Code, provides as follows:
"It is well settled in this state by uniform line of authorities, that our death statute (sec. 5-311, I.C.A.), sometimes referred to as `Lord Campbell's Act', creates a new right of action with different measure of damages from anything known at common law." Hughes v. Hudelson, 67 Idaho 10, 17, 169 P.2d 712, 715. As the Idaho death statute gives "a new right of action" to a designated class of persons, i. e., the decedent's heirs or personal representatives, the determination of who must bring the action depends upon substantive law, and the question of whether Bruce Kirkham Campbell is an indispensable party plaintiff to this action must be determined by the law of Idaho.
Other jurisdictions have usually construed wrongful death statutes as authorizing but one joint and indivisible action in which all the damages for the benefit of all the beneficiaries shall be recovered. They hold that separate actions cannot be maintained by, or on behalf of, the several beneficiaries entitled under the act. 25 C.J.S., Death, §§ 33a, 57.
There is no Idaho case precisely in point. But in Whitley v. Spokane Ry. Co., 23 Idaho 642, 132 P. 121, affirmed 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060, L.R.A.1915F, 736, the Supreme Court of Idaho held that it was unnecessary, in an action under Idaho's wrongful death statute, to join the decedent's widow who had previously prosecuted an action in the Washington courts on the same cause of action and recovered a judgment therein. The court...
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