Crowder v. Gordons Transports, Inc.

• Citation: 419 F.2d 480
• Decision Date: 23 December 1969
• Docket Number: No. 19556.,19556.
• Parties: Ruth CROWDER, Mother and Next Friend of Walter Paul Crowder and David Douglas Crowder, Minors, Appellants, v. GORDONS TRANSPORTS, INC., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

419 F.2d 480 (1969)

Ruth CROWDER, Mother and Next Friend of Walter Paul Crowder and David Douglas Crowder, Minors, Appellants, v. GORDONS TRANSPORTS, INC., Appellee.

No. 19556.

United States Court of Appeals Eighth Circuit.

December 23, 1969.

Floyd Rogers, Ralph W. Robinson, Van Buren, Ark., and P. H. Hardin, Bradley D. Jesson and Robert T. Dawson, Fort Smith, Ark., for appellant.

Robert S. Lindsey, Wright, Lindsey & Jennings, Little Rock, Ark., for appellee.

Before BLACKMUN, LAY and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

We are confronted here with the question whether a covenant-not-to-sue settlement with one of two alleged joint tort-feasors bars a wrongful death action against the other when the amount paid for the covenant exceeds the wrongful death maximum specified by the statute of the state where the injury occurred. Somewhat to our surprise there is a paucity of precedent. Unfortunately, we were not favored with oral argument.

Walton W. Crowder, an Arkansas domiciliary and then age 40, died in Missouri on July 27, 1965, from injuries received that day in a collision between the tractor-trailer unit he was operating and a tractor-trailer transport operated by James J. Gray. The decedent was survived by his widow, Ruth, and two minor sons. The accident occurred in Missouri less than a mile north of the Missouri-Arkansas line. At the time the decedent was an employee of the St. Louis-San Francisco Railway Company and Gray was an employee of Gordons Transports, Inc. Each was then acting in the course of his employment.

On July 12, 1966, Ruth Crowder, as administratrix of her husband's estate, instituted a wrongful death diversity action against Gordons in the United States District Court for the Western District of Arkansas. She prayed for damages for herself, for her two sons, and for funeral expenses in the respective amounts of $150,000, $100,000, $150,000, and $1,500, making a total of $401,500. The Arkansas wrongful death statutes, Ark.Stat.Ann. §§ 27-906 to -910 (Repl.1962), authorized this procedure and have no limitation as to recoverable amount.

Gordons, by answer and a later motion to dismiss, asserted, among other things, that the Missouri wrongful death statutes, rather than Arkansas', were controlling and that under the Missouri statutes the administratrix was not the proper person to maintain the action.

Before the issues so drawn were ruled upon the district court granted the plaintiff the opportunity and the time to amend her complaint. The amendment was filed January 21, 1967, a date more than a year after the accident. With the amendment, Mrs. Crowder now sued as "mother and next friend" of the two minor sons and claimed damages only in the amount of $25,000. These changes obviously were made in the light of Mo. Rev.Stat. §§ 537.080 and .090, V.A.M.S., as then in effect, designating the proper party plaintiff and the maximum amount recoverable in a wrongful death action. (Those statutes were repealed and replaced, with like section numbers, by Laws 1967, p. 663 § 1.)

Gordons then moved to dismiss the complaint as so amended on the ground that the action was barred by the expiration of the one year limitation period then applicable to a Missouri wrongful death action. Mo.Rev.Stat. § 537.100, V.A.M.S. (This period was extended to two years by Laws 1967, p. 663 § 1.)

The district court sustained the motion to dismiss; it held that, under Rule 15(c), Fed.R.Civ.P., the amendment did not relate back to the date of the filing of the complaint. Crowder v. Gordons Transports, Inc., 264 F.Supp. 137 (W.D. Ark.1967). On appeal this court reversed and remanded. 387 F.2d 413 (8 Cir. 1967). We ruled, citing Glick v. Ballentine Produce, Inc., 343 F.2d 839 (8 Cir. 1965), cert. denied, 382 U.S. 891, 86 S.Ct. 184, 15 L.Ed.2d 149, that the district court reached a permissible conclusion when it held that the substantive Missouri law controlled this wrongful death action in the Arkansas federal court for an injury and death which occurred in Missouri, and "that an action must be commenced in the manner set forth in the Missouri statute and within the time therein prescribed." 387 F.2d at 415. We further held, however, that the issue of relation back was one of procedure and not of substantive law and was controlled by the Federal Rules of Civil Procedure and that, under Russell v. New Amsterdam Cas. Co., 303 F. 2d 674 (8 Cir. 1962), the amendment did relate back. The appropriate form of the lawsuit and its timeliness were thereby established.

On the remand, through interrogatories and requests for admissions, it was brought out that on June 30, 1966, Mrs. Crowder, in consideration of the payment of $30,000 made to her individually and as administratrix, had given the St. Louis-San Francisco Railway Company her written covenant not to sue.

We therefore have as facts (a) injury and death of the decedent in Missouri, (b) a Missouri statute then specifying $25,000 as the limit of recovery in a wrongful death action, (c) the payment, on an appropriately restricted covenant not to sue, see New Amsterdam Cas. Co. v. O'Brien, 330 S.W.2d 859, 865 (Mo. 1960), of the sum of $30,000 by the decedent's employer, a common carrier by railroad and subject to the federal Employers' Liability Act, 45 U.S.C. ch. 2, with no specified maximum liability, and (d) the subsequent institution of the present suit against Gordons for the Missouri statutory limit of $25,000.

With this factual development, Gordons moved for summary judgment under Rule 56, Fed.R.Civ.P. The district court sustained this motion. Crowder v. Gordons Transports, Inc., 289 F.Supp. 166 (W.D.Ark.1968). In its opinion the court incorporated the unpublished opinion of the United States District Court for the Western District of Tennessee concerning the same issue as it emerged with respect to the death of Crowder's coemployee and passenger, David Willett, who also lost his life in the collision of July 27, 1965. The railway similarly had paid Mrs. Willett, individually and as administratrix of her deceased husband's estate, the sum of $25,000 upon her covenant not to sue.

The Tennessee court referred to Mo. Rev.Stat. § 537.080, V.A.M.S., cited above, and also to § 537.060. The latter concerns contribution between tort-feasors and provides that it shall be lawful for a person having a cause of action against two or more joint tort-feasors to settle with and release one "without impairing the right of such person * * * to demand and collect the balance of said claim or cause of action from the other joint tort-feasors * * *." The Tennessee court recognized that if the situation were reversed and Mrs. Willett had first settled with Gordons for $25,000, she would not be barred from claiming an additional amount against the railroad under the FELA. It noted, 289 F.Supp. at 169, that there was "no Missouri case precisely in point". It felt that the Missouri statute should be construed to mean that, for purposes of the statute, there is one claim or cause of action against joint tort-feasors; that the alleged facts would make Gordons and the railroad joint tort-feasors if both were negligent; and that, therefore, defendant Gordons' motion for summary judgment should be granted. The Arkansas court held that the memorandum decision of the Tennessee court was "decisive of all matters at issue" here, 289 F.Supp. at 170, and sustained Gordons' motion for summary judgment accordingly.

Again we have a Crowder appeal.

The plaintiffs contend that the case turns on the relationship between the FELA and the Missouri wrongful death statute with its maximum recovery limitation; that both statutes are in derogation of the common law; that, however, any similarity between the two ends at that point; that the FELA is a federal act and uniform in its application; that a wrongful death statute, on the other hand, is a creature of the state; and that statutes of that kind vary from state to state. They stress comments in the cases that a purpose of the FELA was to abolish the common law defenses of assumption of risk, of contributory negligence, and of the fellow servant doctrine, and that the federal statute is an outgrowth of the same economic and social considerations which prompted the adoption of the workmen's compensation laws and the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950. They cite Ganotis v. New York Central R. R., 342 F.2d 767 (6 Cir. 1965); Barrett v. Toledo, P. & W. R. R., 334 F.2d 803 (7 Cir. 1964); Phillips v. Houston Fire & Cas. Ins. Co., 219 F.Supp. 420, 423-424 (W. D.La.1963); and Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 340, 156 A. L.R. 922 (1944). They point out that the FELA differs from the Missouri statute in its designation of beneficiaries, in its measure of damages, in the absence of a monetary limit, in its exclusion of defenses which are available under the state statute, and in its conception of negligence.

Gordons contends that the plaintiffs misconstrue the issue; that the suit concerns, instead, only the effect of the $30,000 payment; that the FELA is a negligence statute; that Gordons' liability also is predicated on negligence; that the right of recovery under the Missouri statute is limited; and that the $30,000 payment was more than "full response" to the Missouri statute, to use the phraseology employed in Myers v. Kennedy, 306 Mo. 268, 267 S.W. 810, 815 (1924).

We have no issue here as to the legal character and effect of the instrument Mrs. Crowder gave to the railroad. It purported not to be a release or full satisfaction and the parties appear to accept it as a mere covenant not to sue and nothing more.

We start with the proposition, seemingly obvious enough, that there can be but one recovery for a wrong. This, of course, is recognized in Missouri. New Amsterdam Cas. Co. v. O'Brien, supra, 330 S.W.2d at 864; Berry v. Kansas City Pub. Serv. Co., 343 Mo. 474, 121...