Crowder v. Gordons Transports, Inc., Civ. A. No. 2005.

• Citation: 264 F. Supp. 137
• Decision Date: 21 February 1967
• Docket Number: Civ. A. No. 2005.
• Parties: Ruth CROWDER, Mother and Next Friend of Walter Paul Crowder and David Douglas Crowder, Minors, Plaintiff, v. GORDONS TRANSPORTS, INC., a Corporation, Defendant.
• Court: United States District Courts. 8th Circuit. Western District of Arkansas

264 F. Supp. 137

Ruth CROWDER, Mother and Next Friend of Walter Paul Crowder and David Douglas Crowder, Minors, Plaintiff, v. GORDONS TRANSPORTS, INC., a Corporation, Defendant.

Civ. A. No. 2005.

United States District Court W. D. Arkansas, Fort Smith Division.

February 21, 1967.

Robinson & Rogers, Van Buren, Ark., Hardin, Barton, Hardin & Jesson, Fort Smith, Ark., for plaintiff.

Shaw, Jones & Shaw, Fort Smith, Ark., Wright, Lindsey & Jennings, Little Rock, Ark., for defendant.

OPINION

JOHN E. MILLER, District Judge.

There are before the court two motions to dismiss. Before discussing the merits of the motions, the court believes that a brief resume of the pleadings should be made.

On July 12, 1966, the original complaint was filed, the caption of which is as follows:

RUTH CROWDER, Administratrix of the Estate of WALTON W. CROWDER, Deceased.

v.

GORDONS TRANSPORTS, INC., A Corporation.

In the complaint it is alleged that the plaintiff, Ruth Crowder, was appointed Administratrix of the Estate of Walton W. Crowder, deceased, by the Probate Court of Lawrence County, Arkansas, on June 3, 1966; that the defendant, Gordons Transports, Inc., is a corporation organized and existing under and by virtue of the laws of the State of Tennessee, with its principal place of business in the City of Memphis; that the defendant is a common carrier of freight, etc., for hire in interstate commerce, and operates trucks and transports over the highways of the States of Missouri and Arkansas, as well as other states; that it has a branch office in the City of Fort Smith in the Western District of Arkansas.

That on July 27, 1965, Walton W. Crowder received injuries from which he died instantly in the collision of a 1965 International tractor trailer transport being operated by James J. Gray, an employee of defendant, acting within the scope of his employment, and a tractor trailer transport being operated by the said Walton W. Crowder; that the collision occurred on Missouri State Highway 53 in Oregon County, Missouri, approximately eight-tenths of a mile north of the Arkansas-Missouri state line.

Then follow allegations of specific acts of negligence on the part of the defendant, which are alleged to have been a proximate cause of the collision.

In paragraph VI of the complaint it is alleged:

"The decedent, at the time of his death aforesaid, was 40 years of age with a life expectancy of 32.18 years and was an able bodied man, gainfully employed, earning in excess of $10,000.00 per year. The decedent left surviving him as his sole and only heirs at law a widow, namely Ruth Crowder, and two sons, namely Walter Paul Crowder, age 18, and David Douglas Crowder, age 4."

The plaintiff seeks to recover $150,000 for the use and benefit of herself as the surviving widow, and for the use and benefit of Walter Paul Crowder and David Douglas Crowder the sums of $100,000 and $150,000, respectively.

The defendant filed an answer to the complaint on August 1, 1966, denying any negligence on its part, and in paragraphs 5, 6, 7 and 8 alleged:

"5. States that both the accident causing death and the death occurred in Missouri and that any cause of action arising or existing for the alleged wrongful death of Walton W. Crowder arises and exists only by virtue of the wrongful death statutes of Missouri.

"6. States that under the Missouri wrongful death statutes, the plaintiff may not institute or maintain this action and that the complaint fails to state a claim upon which relief can be granted.

"7. States that under the Missouri wrongful death statutes, if there be any liability or responsibility for the alleged wrongful death, the amount recoverable as damages is limited to Twenty Five Thousand Dollars ($25,000.00) and no damages can be awarded or recovered except as fair and just compensation for direct pecuniary loss resulting from the death.

"8. States that to the extent that the complaint seeks to recover damages in excess of Twenty Five Thousand Dollars ($25,000.00) and for elements of damages other than for direct pecuniary loss resulting from the death, the complaint fails to state a claim upon which relief can be granted."

Following the filing of the answer, the defendant served and submitted a pretrial memorandum in support of the allegations contained in paragraphs 5, 6, 7, and 8 of the answer.

On December 9, 1966, the defendant filed a motion to dismiss the original complaint hereinabove referred to, in which the defendant alleged:

"The accident which caused the death of Walton W. Crowder, deceased, and his death, occurred in the State of Missouri, and any cause of action for the alleged wrongful death of Walton W. Crowder, deceased, arises and exists only under and by virtue of the wrongful death statutes of Missouri.

"Under the applicable Missouri wrongful death statutes, the plaintiff is not the proper person to institute or maintain this action and the complaint fails to state a claim upon which relief can be granted."

Subsequent to the filing of the motion to dismiss, the Administratrix served and submitted to the court on December 16, 1966, a memorandum brief in opposition to the motion, in which she contended, inter alia:

"All of the contacts save one, in our instant case, are with the State of Arkansas. It is submitted that this court should reject the inexorable application of law of the place of tort where that place has no reasonable nor relevant interest in this particular case. This Court should apply the substantive law of Arkansas, the State with which the facts are in most intimate contact."

Upon the submission of said brief, the Administratrix, through her attorneys, orally requested that the court defer consideration of the motion and grant time for her to file an amendment to the complaint. In response to the oral request the court on December 21, 1966, entered an order deferring further consideration of the defendant's motion to dismiss and granting the plaintiff Administratrix 30 days within which to serve and file an amendment to the complaint on behalf of the heirs at law of Walton W. Crowder, deceased.

The Administratrix, within the time granted by the order of the court, filed the "Amended Complaint" on January 21, 1967, styled as follows:

RUTH CROWDER, Mother and Next Friend of WALTER PAUL CROWDER and DAVID DOUGLAS CROWDER, Minors,

v.

GORDONS TRANSPORTS, INC., A Corporation.

In the amended complaint the plaintiff realleged and adopted the allegations contained in paragraphs II, III, IV and V of the original complaint, and further alleged that the decedent, Walton W. Crowder, left surviving him, among others, two minor children, namely, Walter Paul Crowder, age 18, and David Douglas Crowder, age 4, and that as a result of the wrongful death of the decedent, the minors have been deprived of the financial contributions for support, maintenance, education, etc., for all of which the plaintiff, as mother and next friend, is entitled to recover for the benefit of the minor children the sum of $25,000.

On February 1, 1967, the defendant filed a motion to dismiss the amended complaint upon the following grounds:

"The accident which caused the death of Walton W. Crowder, deceased, and his death, occurred in the State of Missouri, and any cause of action for the alleged wrongful death of Walton W. Crowder, deceased, arises and exists only under and by virtue of the wrongful death statutes of the State of Missouri.

"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 record discloses that at the time of the death of the deceased he was domiciled in the State of Arkansas. At the time the suit was commenced the plaintiff and the minor children were citizens of Arkansas, and the defendant was a citizen of Tennessee.

The court will consider separately each of the motions, and it is necessary to keep in mind the following dates: The death of the deceased occurred on July 27, 1965. Ruth Crowder, the widow of the deceased, was appointed Administratrix of the estate of the deceased on June 30, 1966. The original complaint was filed on July 12, 1966. The first motion to dismiss was filed December 9, 1966. The amended complaint was filed January 21, 1967. The motion to dismiss the amended complaint was filed February 1, 1967.

Prior to the request of the Administratrix for leave to amend her original complaint and the entry of the order of the court permitting the filing of the amended complaint, the Supreme Court of Arkansas on December 5, 1966, in McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891, reaffirmed its decision in the case of Wheeler v. The Southwestern Greyhound Lines, Inc., (1944) 207 Ark. 601, 182 S.W.2d 214, in which the court at page 603 of 207 Ark., at page 215 of 182 S.W.2d said:

"An action for wrongful death is based on the statute of the place where the injury occurred that caused the death, that is, the lex loci delicti. Earnest v. St. Louis, M. & S. E. R. Co., 87 Ark. 65, 112 S.W. 141; Tipler v. Crafton, 202 Ark. 351, 150 S.W.2d 625; 15 C.J.S., Conflict of Laws § 12, p. 899; Leflar on `Conflict of Laws', Section 79. In the case at bar the injury causing the death occurred in Missouri, so the Missouri law governs. Midland Valley R. Co. v. Le Moyne, 104 Ark. 327, 148 S.W. 654; American Ry. Exp. Co. v. Davis, 152 Ark. 258, 238 S.W. 50, 1063."

In Wheeler, supra, the court fully considered the various applicable statutes of the State of Missouri and the period of limitations contained in the statutes creating a cause of action for death. At page 604 of 207 Ark., at page 215 of 182 S.W.2d, in quoting from Conflict of Laws by Robert A. Leflar, the court stated:

"`There is one well recognized exception to the general rule

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