City of Detroit, Mich. v. Blanchfield

• Decision Date: 07 May 1926
• Docket Number: No. 4544.,4544.
• Citation: City of Detroit, Mich. v. Blanchfield, 13 F.2d 13, 47 ALR 314 (6th Cir. 1926)
• Parties: CITY OF DETROIT, MICH., v. BLANCHFIELD.
• Court: U.S. Court of Appeals — Sixth Circuit

47 ALR 314, 13 F.2d 13 (1926)

CITY OF DETROIT, MICH., v. BLANCHFIELD.

No. 4544.

Circuit Court of Appeals, Sixth Circuit.

May 7, 1926.

Clarence E. Page, of Detroit, Mich. (Charles P. O'Neil, of Detroit, Mich., on the brief), for plaintiff in error.

Harry C. Milligan, of Detroit, Mich., for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DONAHUE, Circuit Judge.

John Blanchfield, guardian of Marion Killackey, a minor, recovered a judgment in the District Court against the city of Detroit for damages for personal injuries to his ward, alleged to have been caused by the negligence of the defendant.

It is insisted that a federal court has no jurisdiction, for the reason that Marion Killackey, the minor, in whose interest the suit is brought, is a resident of the state of Michigan, and that, where the jurisdiction of a federal court depends upon a diversity of citizenship, the residence of the ward, and not of the guardian, controls.

Section 2 of chapter 12 of the Judicature Act of 1915 of the state of Michigan (Pub. Acts 1915, No. 314) provides that "every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by a statute, may sue in his own name without joining with him the party for whose benefit the action is brought."

It was held by the Supreme Court of the United States in Mexican Central Railway Co. v. Eckman, 187 U. S. 429, 436, 23 S. Ct. 211, 47 L. Ed. 245, that, where a guardian in the state of the forum has the legal right to bring suit in his own name, it is his citizenship, and not the citizenship of the ward, upon which the jurisdiction of the federal court depends. This is the latest decision of the Supreme Court to which our attention has been called, and is necessarily controlling. To the same effect is the decision of the second Circuit Court of Appeals in New York Evening Post Co. v. Chaloner, 265 F. 204, 213. The opinion in Toledo Traction Co. v. Cameron, 137 F. 48, 69 C. C. A. 28, was apparently written without reference to the Mexican Central Ry. Co. Case, then recently decided.

It is also contended that the court erred "in permitting an amendment of the summons or declaration, or both, by substituting a different plaintiff in the person of John Blanchfield, guardian of Marion Killackey, a minor, in lieu of Marion Killackey, a minor, by John Blanchfield, her guardian."

We do not regard this change as of any importance. The action was in fact brought by John Blanchfield as guardian of Marion Killackey. The title of the cause does not alter the fact that the declaration affirmatively shows the suit was by the guardian for the benefit of his ward, and not by the ward herself. Even if the contrary appeared, it is not error to substitute a trustee or guardian for the beneficiary, where there is no change in the cause of action and the party substituted is the proper party to prosecute the action. Hines v. Smith (6 C. C. A.) 270 F. 132, 135, 136; New York Evening Post Co. v. Chaloner, supra, at page 213; Quaker City Cab Co. v. Fixter (C. C. A.) 4 F.(2d) 327, 328.

Marion Killackey, a minor, could not prosecute this action in her own name. The guardian was the proper party to bring and maintain the action in her behalf, and it is not necessary that she should be a party to the suit.

It is further claimed that it was error to permit this amendment to the declaration, because Blanchfield, as guardian, did not comply with the requirements of section 12, chapter 12, of title 6, page 137, of the charter of the city of Detroit, which provides that no action shall be commenced after one year from the time the injury was received, or unless written notice was served upon the corporation counsel or his chief assistant within 60 days from the time of the happening of such injury, and that the time had expired for giving such notice and bringing such action. It appears, however, that the former guardian of Marion Killackey fully complied with these provisions of the city charter. It was therefore wholly unnecessary for the present guardian to give the corporation counsel or his chief assistant another written notice, or to delay 60 days after giving a second notice before bringing this suit.

It is also claimed on behalf of the plaintiff in error that the trial court erred in not sustaining its motion to dismiss this cause, for the reason that Blanchfield was appointed guardian of Marion Killackey for the sole purpose of creating diversity of citizenship. This objection was first made during the trial of the case, almost two years after the injury occurred, and after a new action was barred by the provision of defendant's charter. Clearly this objection, made at this late date and under the circumstances above stated, ought not to be sustained, except for compelling reasons.

Where diversity of citizenship is duly alleged, or apparent in the declaration, denial thereof must be made by plea in abatement, unless the statutes, rules of pleading, practice, and procedure prevailing in the courts of the state in which the action is brought provide some other method for presenting this issue. Roberts...