O'DONNELL v. Elgin, Joliet & Eastern Ry. Co.

• Citation: 193 F.2d 348
• Decision Date: 15 January 1952
• Docket Number: No. 10390.,10390.
• Parties: O'DONNELL v. ELGIN, JOLIET & EASTERN RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

193 F.2d 348 (1951)

O'DONNELL v. ELGIN, JOLIET & EASTERN RY. CO.

No. 10390.

United States Court of Appeals Seventh Circuit.

November 6, 1951.

Rehearing Denied January 15, 1952.

Harlan L. Hackbert, Chicago, Ill., Knapp, Cushing, Hershberger & Stevenson, Chicago, Ill., of counsel, for appellant.

Joseph D. Ryan, Louis P. Miller, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.

MAJOR, Chief Judge.

This action was brought by plaintiff, administratrix of the estate of her deceased husband, under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, sometimes referred to as the Federal Act. A judgment favorable to the defendant was affirmed by this court. O'Donnell v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 171 F.2d 973. Upon certiorari, the Supreme Court reversed. 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187.

Following remandment, plaintiff filed an amended complaint. Defendant answered and moved to dismiss (the same motion had theretofore been made to the original complaint and denied) for the following reasons:

"1. It affirmatively appears from the allegations of paragraph 9 of plaintiff's amended complaint that plaintiff is an administratrix appointed by the Probate Court of Lake County, Indiana and as such lacks capacity to maintain an action in this court under section 419 of the Illinois Probate Act (Ill.Rev.Stat., ch. 3, sec. 419) which is made applicable to this action by Rule 17(b) of the rules of Civil Procedure 28 U.S. C.A..

"2. It affirmatively appears from the allegations of plaintiff's amended complaint that the death of plaintiff's decedent occurred in Lake County, Indiana, under section 6 of the Federal Employers' Liability Act (45 U.S.C.A. sec. 56), the jurisdiction of this court is concurrent with the jurisdiction of the courts of Illinois, and under section 2 of the Illinois Injuries Act (Ill. Rev.Stat., ch. 70, sec. 2) the courts of Illinois have no jurisdiction of this action."

The motion to dismiss was denied and a trial was had, resulting in a verdict and judgment favorable to the plaintiff in the amount of $50,000. Defendant's motion in arrest of judgment for reasons set forth in its motion to dismiss, or in the alternative for a new trial, was denied. The appeal comes to this court from the aforesaid judgment.

The issues here arising from the denial of defendant's motion to dismiss are: (1) whether a non-resident administratrix, appointed in Indiana, has the capacity to sue as a personal representative in a Federal district court sitting in Illinois, and (2) whether a Federal district court so sitting has jurisdiction under the Federal Employers' Liability Act to hear and decide an action for wrongful death which occurred in Indiana. Obviously, if either of these issues be determined adversely to plaintiff, we shall not reach other issues arising from the denial of defendant's motion for a new trial.

Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., entitled "Capacity to Sue or Be Sued", provides that such capacity "to sue or be sued shall be determined by the law of the state in which the district court is held * * *." Sec. 419 of the Illinois Probate Act, Ill.Rev.Stat.1951, ch. 3, Sec. 419, provides that a foreign administrator "to whom letters are issued * * * by a court of competent jurisdiction of any state or territory of the United States may sue in this state in any case in which a resident executor, administrator * * * may sue." Sec. 1 of the Illinois Injuries Act, Ill.Rev.Stat.1951, ch. 70, Sec. 1, makes provision for a right of action for death caused by the wrongful act, neglect or default of another. Sec. 2 of the same Act provides, "Every such action shall be brought by and in the names of the personal representatives of such deceased person * * *." This section further provides "that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place."

Thus, defendant contends that an administrator, under the statutory law of Illinois, whether local or foreign, lacks the capacity to sue in an Illinois court for wrongful death occurring in another state and that, under Rule 17(b), such an administrator likewise lacks capacity to sue in a Federal district court sitting in Illinois.

In our view, the fallacy of this contention lies in the failure to distinguish between capacity to sue, venue and jurisdiction. This we think is illustrated by the reliance which defendant places upon Walton v. Pryor, 276 Ill. 563, 115 N.E. 2, L.R.A.1918E, 914. There, the action was brought in an Illinois circuit court by a resident administratrix to recover under the Federal Act for the death of her husband, which occurred in the State of Missouri. The Illinois Supreme Court reversed the judgment in plaintiff's favor upon the sole ground that the provision of the Illinois Injuries Act (heretofore quoted) deprived an Illinois court of jurisdiction. The court stated, 276 Ill. at page 570, 115 N.E. at page 5: "It will therefore be seen that the statute of the state provides for an action identical in every particular with the cause of action of which the circuit court assumed jurisdiction, but denies to the court the exercise of such jurisdiction where the death occurs outside of the state."

Further, the motion to dismiss was not made until after trial, but the court held that the issue being jurisdictional could be raised at any time, 276 Ill. at page 565, 115 N.E. at page 3. The fact is that the capacity in which plaintiff brought the action was not an issue and was not mentioned. Of course, if an Illinois court is without jurisdiction to entertain a suit by a local administrator on account of a death which occurred in another State, as was held in the Walton case, it would seem to follow that such a court would be without jurisdiction to entertain a similar action if brought by a foreign administrator. See First National Bank of Chicago v. United Air Lines, 7 Cir., 190 F.2d 493.

But such a result as well as the reasoning therefor are beside the point because Illinois does recognize the capacity of an administrator, both local and foreign, to commence in its courts an action for wrongful death, and jurisdiction is expressly conferred, with the proviso that jurisdiction only is denied where death occurs outside the State. In other words, whether death occurs within or without the State has nothing to do with the capacity of an administrator to sue; it is only determinative of whether the Illinois court is vested with jurisdiction.

Defendant also places much reliance upon a recent opinion of this court, Trust Co. of Chicago v. Pennsylvania R. Co., 183 F.2d 640. True, this court held that the Illinois statute deprived a State court of jurisdiction to entertain a suit for wrongful death occurring outside the State, that the law of the State was binding upon a Federal district court sitting in Illinois in a diversity case and that the latter was likewise without jurisdiction to entertain such an action. Nothing was said in that opinion, however, relative to the capacity in which the suit was brought and its citation in support of defendant's argument on this point is a further illustration of the confusion engendered by failure to differentiate between capacity to sue and jurisdiction.

The distinction which we make between capacity to sue and jurisdiction finds support in the authorities, particularly in cases decided by the judges of the Northern District of Illinois. In Martineau v. Eastern Air Lines, Inc., D.C., 64 F.Supp. 235, 237, the district court (Campbell) in considering the same question stated: "The capacity of a suitor is not the same concept as the jurisdiction of a court. Before the passage of the Injuries Act, an administrator could not sue for wrongful death because there was no right and no remedy, not because he lacked the capacity to sue."

In Waltz v. Chesapeake & O. Ry. Co., D.C., 65 F.Supp. 913, 915, the district court (La Buy) in considering the instant question stated: "The limitation of Section 2 of the Illinois Injuries Act, when linked to Section 419 of the Illinois Probate Act, results in the conclusion that a foreign administrator may not sue in Illinois courts for death occurring outside of the state of Illinois. But Section 2 of the Injuries Act is not directed to the capacity of the parties to sue. Its purpose is to limit the jurisdiction of the Illinois courts. If the proviso of Section 2 limiting jurisdiction was nonexistent, an administrator could sue in Illinois and Illinois courts would have jurisdiction over this class of cases."

This court, in Scott v. New York, C. & St. L. R. Co., 159 F.2d 618, had before it a situation wherein suits had been brought under the Federal Act in a Federal court by an administrator appointed in Illinois where the decedent's death occurred in Indiana. In the meantime, a similar suit had been instituted by an Indiana administrator in a court of that State. While the capacity in which suit was brought by the Illinois administrator was not raised, so far as the opinion discloses, the court reasoned that the suit might properly be maintained by either administrator. The court (opinion by Judge, now Justice, Minton) stated, 159 F.2d at page 619: "Since personal representatives were regularly appointed in both Illinois and Indiana to enforce the cause of action, they each had a right to sue thereon, but the action in which judgment was first reached became res judicata as to the other. Since the judgment was first recovered in Indiana, that judgment was res judicata as to the action in Illinois which had not yet reached and never did reach judgment."

On the application of Rule 17(b), see also Cooper v. American Airlines, Inc., 2...