DEGREE OF HONOR PROTECTIVE ASSOCIATION v. Charles T. Bisch & Son, Inc., Civ. A. No. 61-118.

• Decision Date: 22 May 1961
• Docket Number: Civ. A. No. 61-118.
• Citation: 194 F. Supp. 614
• Court: U.S. District Court — District of Massachusetts
• Parties: DEGREE OF HONOR PROTECTIVE ASSOCIATION, Plaintiff, v. CHARLES T. BISCH & SON, INC., and Grayce E. Mencke, Defendants.

194 F. Supp. 614

DEGREE OF HONOR PROTECTIVE ASSOCIATION, Plaintiff, v. CHARLES T. BISCH & SON, INC., and Grayce E. Mencke, Defendants.

Civ. A. No. 61-118.

United States District Court D. Massachusetts.

May 22, 1961.

Charles H. Loring, Woburn, Mass., Roy J. Mohan, St. Paul, Minn., for plaintiff.

Jacob Shair, Boston, Edward F. Casey, Scorling, Catron & Hardin, Springfield, Ill., Edgar L. Kelley, Boston, Mass., for defendants.

SWEENEY, Chief Judge.

The plaintiff some time ago issued a policy of insurance in the amount of $1,000 to one Elizabeth Nees, who died on February 6, 1960. The defendant Grayce E. Mencke, a niece of the insured, is the named beneficiary. The other defendant, an Illinois corporation engaged in the undertaking business, claims that the insured delivered the policy to it advising that the defendant Mencke would use the proceeds thereof to pay for funeral and burial expenses of the insured, and that it did bury her at a cost of $709.53. Presented with these conflicting claims, the plaintiff interpleaded the claimants and deposited the amount of the policy in court.

The defendant Charles T. Bisch & Son, Inc., (hereinafter referred to as Bisch) filed a cross-claim in which it alleges that it also conducted the funeral of the defendant Mencke's mother, Emma Peebles, who died on March 11, 1960. It prays that it also be paid its expenses and charges in connection with this funeral, $611, out of the fund, or that, in the alternative, judgment be entered in its favor against the defendant Mencke. The matter is before the court now on Mencke's motion to strike the cross-claim for lack of jurisdictional amount.

Rule 13(g), F.R.Civ.P., 28 U.S.C., permits cross-claims by one party against a co-party "arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or relating to any property that is the subject matter of the original action". A cross-claim maintainable under this rule may be considered ancillary to the main claim and need not have an independent jurisdictional basis. Coastal Airlines v. Dockery, 8 Cir., 1950, 180 F.2d 874; Mayer v. Chase National Bank of City of New York, D.C.S.D.N.Y.1958, 165 F. Supp. 287. The inquiry, therefore, narrows to the question whether the claim for funeral expenses of Emma Peebles meets the requirements of Rule 13(g), that is, whether it arises out of the same transaction which is the subject matter of the complaint.

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