Fry v. Lamb Rental Tools, Inc.
Decision Date | 16 October 1967 |
Docket Number | Civ. A. No. 12535,12856. |
Citation | 275 F. Supp. 283 |
Parties | Ray F. FRY, Tutor of the Minors, Lauren Owen, Tracy Owen, and Kelly Owen, v. LAMB RENTAL TOOLS, INC., Eagle Star Insurance Company, Ltd., Paul Fournet Air Service, Inc., and Pacific Indemnity Company. Grady B. YAWN v. LAMB RENTAL TOOLS, INC., Eagle Star Insurance Company, Ltd., Paul Fournet Air Service, Inc., and Pacific Indemnity Company. |
Court | U.S. District Court — Western District of Louisiana |
Domengeaux, Wright & Bienvenu, Bob F. Wright, Lafayette, La., for plaintiffs in No. 12535.
Bean & Rush, Warren D. Rush, Lafayette, La., for plaintiff in No. 12856.
Hall, Raggio, Farrar & Barnett, R. W. Farrar, Jr., Lake Charles, La., for intervenor.
Davidson, Meaux, Onebane & Donohoe, James E. Diaz, Lafayette, La., for Paul Fournet Air Service.
Durrett, Hardin, Hunter, Dameron & Fritchie, Wallac A. Hunter, Baton Rouge, La., for Eagle as insurer of Lamb.
Kennon, White & Odom, John S. White, Jr., Baton Rouge, La., for Eagle as insurer of Paul Fournet Air Service.
These two cases arise out of an airplane crash which occurred in Texas on May 11, 1966. From the face of the papers it appears that the Court has jurisdiction based upon diverse citizenship of the litigants, the amount in controversy being in excess of $10,000.00.
The airplane in question was owned by Lamb Rental Tools, Inc.; it was regularly maintained and kept in repair at Lafayette, Louisiana, by Paul Fournet Air Service, Inc. These corporations are named as defendants and both are domiciliaries of the State of Louisiana having their principal places of business in Lafayette. The accident occurred on takeoff from a Houston airfield after a stopover en route to Tulsa, Oklahoma, from Lafayette. At the time it was piloted by an employee of Lamb; the co-pilot was also hired by Lamb for this particular flight, although he is a regular pilot on the payroll of defendant Fournet Air Service.
In the Fry case the plaintiffs are three minor children of Dale R. Owen and Beverly Fry Owen who died in the crash. The minors are represented by a Texas citizen, Ray Fry, as the court-appointed tutor of his grandchildren. No claim is made by the tutor for himself individually.
In the Yawn case the plaintiffs are the three minor children of Mrs. Virginia Marie Lamb who also died in this unfortunate accident. Mrs. Lamb was survived by her husband, Edward C. Lamb, in addition to the plaintiffs, Mr. Lamb being a citizen of Louisiana. The tutor, Mr. Yawn, is a citizen of Texas and was appointed provisional tutor for the minor children for the purpose of bringing this suit. Although significant jurisdictional questions are suggested by this factual situation and also by the provisions of Article 2315 of the Revised Civil Code of Louisiana of 1870, LSA C.C. Article 2315, which provides that the action for wrongful death under Louisiana law exists in favor of the surviving spouse and children of the decedent, we do not consider these questions as they have not been raised and argued by the parties.
The motion to dismiss is based upon the provisions of the Texas wrongful death statute, Articles 4671-4678, Vernon's Ann.Texas Civil Statutes, which provide:
"Action may be brought by surviving husband, wife, children and parents of the person whose death has been caused or by either of them for the benefit of all * * *"
Under the jurisprudence of Texas it is established that each of the beneficiaries named in the statute must be made parties to the suit or suit must be prosecuted by one or more of such beneficiaries for the benefit of all. Schafer v. Stevens, 352 S.W.2d 471 (Tex.Civ.App.1962); Webb v. Huffman, 320 S.W.2d 893 (Tex. Civ.App.1959); Henwood v. Richardson, 163 S.W.2d 256 (Tex.Civ.App.1942); Greathouse v. Fort Worth and D. C. Ry. Co., 65 S.W.2d 762 (Tex.Com.App.1933); Cobb Brick Co. v. Lindsay, 277 S.W. 1107 (Tex.Civ.App.1925). These authorities further establish that the beneficiaries named in the statute are necessary parties to such an action.
In the Fry case, the parents of the decedents are not made parties plaintiff and, under Texas law they must be joined as such or the suit should be dismissed. Similarly, in the Yawn case, the surviving spouse is not made a party plaintiff nor are the parents of the person deceased joined as plaintiffs. Defendants argue that under the conflicts of law rule that prevails in Louisiana the lex loci delicti applies and these suits must be dismissed, pursuant to 28 U.S. C.A., F.R.Civ.P. Rule 19.
Counsel for plaintiffs forcefully contend that the more modern theory of "significant contacts" or the so-called "center of gravity" rule should be adopted and followed in this case, under which theory Louisiana law would govern the rights of the parties. It is pointed out that the circumstances of this case are especially appropriate for application of the theory. We are referred to dicta in two recent Louisiana cases, Doty v. Central Mutual Insurance Company, 186 So. 2d 328 (La.App.1966), and Blanchard v. Blanchard, 180 So.2d 564 (La.App.1965), wherein it is suggested by one of the learned judges of the Third Circuit Court of Appeal of this State, Honorable Albert Tate, Jr., that Louisiana should adopt and follow the "significant contacts" doctrine in such cases. See authorities cited in these opinions.
On the other hand, it is the established rule of Louisiana that the substantive law of the place where the tort was committed or the accident occurred will govern a determination of the rights of parties to a suit filed in Louisiana in a cause of action ex delicto. Burke v. Massachusetts Bonding and Insurance Co., 209 La. 495, 24 So.2d 875 (1946); Matney v. Blue Ribbon, 202 La. 505, 12 So.2d 253 (1942); Nicholson v. Atlas Assurance Corp., 156 So.2d 245 (La.App. 1963); Watkins v. Cupit, 130 So.2d 720 (La.App.1961); Mock v. Maryland Cas....
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