Crowder v. Gordons Transports, Inc., 18867.

Citation387 F.2d 413
Decision Date29 December 1967
Docket NumberNo. 18867.,18867.
PartiesRuth CROWDER, Mother and Next Friend of Walter Paul Crowder and David Douglas Crowder, Minors, Appellant, v. GORDONS TRANSPORTS, INC., a Corporation, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

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

Wright, Lindsey & Jennings, Little Rock, Ark., and Shaw, Jones & Shaw, Fort Smith, Ark., filed brief for appellee.

Before VAN OOSTERHOUT, MEHAFFY and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The issue presented by this timely appeal, taken by Ruth Crowder, mother and next friend of Walter Paul Crowder and David Douglas Crowder, minors, is whether the court erred in dismissing her amended complaint seeking damages from defendant, Gordons Transports, Inc., for wrongful death of the father of the named minor children. More specifically, the issue is whether the amended complaint relates back to the date of the filing of the original complaint for the purpose of determining whether the action was commenced within the time required by the governing Missouri statute creating the right of action.

The pertinent facts are not in dispute. Walton W. Crowder, a resident of Arkansas and father of the minor children, was fatally injured in a motor vehicle collision on July 27, 1965. He died the same day as a result of such injuries. The accident occurred in Missouri, less than one mile from the Arkansas border.

Defendant is a Tennessee corporation engaged in interstate transportation of freight in Missouri, Arkansas and other states, and has a branch office in Arkansas.

A complaint, with jurisdiction based upon diversity of citizenship, seeking damages for the wrongful death of Mr. Crowder, was filed in the United States District Court for the Western District of Arkansas on July 12, 1966, naming Ruth Crowder, administratrix of the estate of the decedent, as plaintiff. Such complaint sought damages for the death of Mr. Crowder and asserted his death was proximately caused by the negligence of defendant's driver. The complaint asserted that the decedent was survived by his wife and two minor sons, hereinabove named. Damages sought were as follows:

1. $100,000 for Walter Paul Crowder, minor son.

2. $150,000 for David Douglas Crowder, minor son.

3. $150,000 for Ruth Crowder as surviving widow.

4. $1500 for administratrix for funeral expenses.

Items 3 and 4, supra, were dropped by the amended complaint and upon this appeal we are concerned only with claims 1 and 2 of the minor sons.

Defendant, by answer filed August 1, 1966, denied liability and asserted that the Missouri wrongful death statute controlled and that the action was not commenced within the time required by such statute, and that hence plaintiff was entitled to no relief. A motion to dismiss was filed December 9, 1966, and raised the issue that plaintiff failed to state a claim upon which relief can be granted and asserted substantially the same defense stated in the answer. Before such motion was ruled upon, the administratrix sought, and by order of court dated December 22, 1966, was granted thirty days "within which time counsel may serve and file an amendment to the complaint in this cause on behalf of the heirs at law of Walton W. Crowder, deceased." Amended complaint was filed on January 21, 1967, which substitutes Ruth Crowder as mother and next friend of the two named minor children as plaintiff, and reasserting the material allegations of the complaint and the wrongful death claim of the two minors, and praying for judgment for $25,000, the limit of recovery under the Missouri statute.

On February 1, 1967, defendant filed a motion to dismiss the amended complaint, urging, "Under the applicable Missouri wrongful death statutes, the cause of action asserted by the plaintiff in the Amended Complaint is barred by the statute of limitations which is a part of the statute creating the right of action; the Amended Complaint fails to state a claim upon which relief can be granted."

The court on February 12, 1967, sustained the motion to dismiss and entered final order dismissing both the original complaint and the amended complaint. The court's memorandum opinion discussing in depth the facts and applicable law is reported at 264 F.Supp. 137.

In its opinion, the court recognized the well-established law that wrongful death actions were not recognized at common law and that such actions must be based upon a statutory foundation. The court, upon the authority of McGinty v. Ballentine Produce, Inc., 1966, 241 Ark. 533, 408 S.W.2d 891, held that under Arkansas law an action for wrongful death is based upon the statute of the place where the injury occurred and that since the injury here involved occurred in Missouri, the substantive law of Missouri applies to this wrongful death action. No challenge is made to such determination, so we are not here confronted with the issue of whether the Arkansas court, under the circumstances of this case, would depart from the lex loci delicti rule in favor of the forum preference or more significant contact rule.1

Glick v. Ballentine Produce, Inc., 8 Cir., 343 F.2d 839, like our present case involves an action brought in Arkansas for a wrongful death based upon injuries inflicted in Missouri. We there held, as the trial court held here, that under Arkansas law the law of Missouri, the place of the injury, is applied in wrongful death actions commenced in Arkansas. We also set out and discuss the Arkansas and Missouri wrongful death statutes. We summarize the applicable Missouri law as follows:

"In Missouri, the cause of action is created by § 537.080 V.A.M.S.; and shall be commenced within one year after the cause of action accrues, § 537.100. The surviving spouse has the right to institute the action within six months after the death of the deceased. If there be no surviving spouse or he or she fails to sue within six months, the surviving minor child or children may institute the cause of action. If there be no surviving spouse, minor child or children, then suit may be instituted by the administrator or executor of the deceased. Forehand v. Hall, 355 S.W.2d 940 (Mo.1962). The amount recoverable as damages is limited to $25,000. § 537.090 V.A.M.S." 343 F.2d 839, 842.

In view of our agreement with the trial court that Missouri law applies, we see no need to summarize the Arkansas law. However, it is appropriate to state that the original complaint conforms to Arkansas law which places the cause of action in the administrator.

We are satisfied that the trial court reached a permissible conclusion upon the basis of Arkansas and Missouri law set forth in its opinion when it held that the substantive Missouri law controls this wrongful death action and that an action must be commenced in the manner set forth in the Missouri statute and within the time therein prescribed.

It is firmly established that the original complaint was filed more than six months after the decedent's death and within twelve months of such event and hence, that the action was filed within the time fixed by Missouri law for the commencement of wrongful death actions by children of the party wrongfully killed.

We now reach the crucial issue in this case, which is whether the amended complaint relates back to the time of the filing of the original complaint. If relation back exists, it is clear that the action was commenced within the time prescribed by the Missouri statute and by a party authorized to sue by such statute.

Since it is clear under the Federal Rules of Civil Procedure, as hereinafter explained, that the amended complaint filed relates back and grave doubt exists whether relation back would be operative under Missouri law,2 it is essential that we determine whether state or federal law governs in determining the relation back issue. This in turn depends upon whether the problem is one of substantive law or procedure.

The trial court did not directly decide the issue of whether state or federal law applies. It did reject plaintiffs' claim that Rule 15, Fed.R.Civ.P., calls for relation back in the present situation and it asserted the 1966 amendments to Rule 15 have no application. It then proceeds to determine that no relation back is permissible on the basis of the Missouri cases which it cites.

We are of the view that the issue of relation back is one of procedure and is controlled by the Federal Rules of Civil Procedure. In Russell v. New Amsterdam Cas. Co., 8 Cir., 303 F.2d 674, a case arising under the Nebraska wrongful death statute, we determine that the widow, who had timely instituted the action in her individual capacity as sole heir, could amend her complaint after the expiration of the limitation period to substitute herself as plaintiff in the capacity of administratrix and that such amendment related back to the time of the filing of the original complaint. After citing and discussing numerous pertinent cases, we hold:

"In summary, we hold that under the circumstances, the amendment did not introduce a new and different cause of action, but went to the right to pursue the same cause of action alleged in the original complaint; that the amendment was therefore procedural, bringing into play Rule 15(c) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., which provides that when the claim asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the original pleading, and, finally, the court improperly dismissed appellant\'s cause of action on the ground that it was barred by the statute of limitations." 303 F.2d 674, 680-681.

We adhere to the view there stated. See also Bochantin v. Inland Waterways Corp., 9 F.R.D. 592, 596.

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