Hodges v. Kimball

• Decision Date: 07 February 1899
• Docket Number: 278.
• Citation: 91 F. 845
• Parties: HODGES et al. v. KIMBALL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

91 F. 845

HODGES et al. v. KIMBALL et al.

No. 278.

United States Court of Appeals, Fourth Circuit.

February 7, 1899

The plaintiffs in error instituted their suit in the circuit court of the United States for the Western district of Virginia to recover of the defendants damages occasioned by the death of their intestate in the state of Virginia while in the employ of the defendants. The suit was instituted on the 30th day of August, 1895. At the October term of that year the defendants appeared, and filed a special demurrer to the declaration, alleging the failure to show adverse citizenship in the plaintiffs, and, the demurrer being sustained, the plaintiffs were allowed to amend their declaration, averring that the plaintiff administrators were residents of the state of Tennessee; and thereupon defendants pleaded not guilty, and upon which plea issue was joined by the defendants. At the May term, 1896, the case was, by consent, and at the defendants' costs, continued; and at the October term, 1896, a further continuance was had, but at whose instance it does not appear. On the 20th of May, 1897 the defendants presented a special plea averring that the plaintiff administrators had never qualified as such in the state of Virginia, and that one J. W. Mort was the Virginia administrator then, and when the suit was instituted. To the filing of this plea, plaintiffs excepted; but the court allowed the same to be filed, and gave the plaintiffs 90 days within which to file their replication. On the 7th day of July, 1897, said replication was filed, setting forth, in substance, that, at the institution of the suit, plaintiffs had not qualified in the state of Virginia, but in the state of Tennessee, intestate's domicile, and that at said time they were the only personal representatives of the decedent that it was true that, subsequent to the bringing of the suit, said J. W. Mort had qualified in the state of Virginia as administrator, but that he had resigned as such; and that they had duly taken out ancillary letters of administration in Virginia on said estate, and were the only representatives of Samuel L. Lusk, deceased. Any they asked leave to amend their declaration, showing their qualification in the state of Virginia. Upon this state of the pleadings, and upon the demurrer of the defendants to the replication of the plaintiffs to plea No. 2 so filed on July 7, 1897, and upon defendants' objection to plaintiffs' motion to amend their declaration, showing the taking out of ancillary letters of administration by them in the state of Virginia the case was on the said 7th day of July, 1897, submitted to the lower court, and the same taken under advisement; and on the 13th day of May, 1898, the decision complained of dismissing plaintiffs' suit, was rendered.

Robert Burrow (Isaac Harr, on brief), for plaintiffs in error.

R. M. Page and J. I. Hurt, for defendants in error.

Before GOFF, Circuit Judge, and WADDILL, District Judge.

WADDILL District Judge (after stating the facts as above).

The learned judge of the lower court (87 F. 545) apparently proceeded upon the theory that, plaintiffs not having taken out letters of administration upon the estate of their intestate in the state of Virginia at the time of the institution of the suit, the same could not be maintained, that the defect could not be cured by amendment, and that plaintiffs, not having qualified in the state at that time, occupied the relation of mere strangers to the litigation. The fact that an administrator, in the absence of a statute, cannot maintain a suit in the courts of a state, other than the one in which he qualified, when the disability is properly and seasonably pleaded, is too well settled to admit of serious controversy. But the question whether, in a suit brought by the domiciliary representatives of a decedent in a state in which they have failed to take out ancillary letters of administration, and where defendants have appeared and pleaded the general issue without raising any question as to the plaintiffs' disability to sue, such defendants should, 18 months thereafter, and when the plea of the statute of limitations would apply to the claimed sued on, be then allowed to interpose such a defense, and plaintiffs denied the right by amendment to show the subsequent qualification and the right to maintain the suit, is another and a very different thing. It was virtually conceded in argument that in an equity suit an amendment showing the subsequent taking out of letters of administration could be made, and the suit maintained, but it was strenuously insisted that a different rule existed in the courts of law. Just what good reason there is for allowing the amendment in equity, and not at law, does not seem apparent; and certainly in a case like the present one, where great injustice would be wrought, unless there is some overpowering consideration, such a result as would follow ought not to be brought about. We do not think that plaintiffs, although laboring under the disability of not having qualified within the state of Virginia at the time of the institution of the suit, occupy the position of strangers, or persons having no interest in the litigation. They were the domiciliary representatives, and as such given the right to qualify over others in this state, and to be accounted with for the amount of recovery, had another administrator qualified. Andrews v. Avory, 14 Grat. 229, 240, 241; Stevens v. Gaylord, 11 Mass. 256; Swatzel v. Arnold, Woolw. 385, Fed. Case. No. 13,682. They had an interest in the subject-matter of the litigation, and a perfect right to sue in the state of Tennessee for the same cause of action, could jurisdiction, as against defendants, have been acquired (Railroad Co. v.Cox, 145 U.S. 593, 12 Sup.Ct. 905; Nelson v. Railroad Co., 88 Va. 971, 14 S.E. 838); and their receipt in settlement of the claim in controversy to the defendants would have been an acquittance from all liability.

It was insisted in argument, and with great ingenuity, that, while this would be true with ordinary choses in action due the decedent in his lifetime, a different rule existed as to claims of this character arising under a statute, in which decedent had no then interest, and that only the representative of the state in which the cause of action arose could deal with claims of this kind. This does not seem to be the correct view, though counsel for defendants presented it with great force and ability. The supreme court of the United States, in the comparatively recent case of Dennick v. Railroad Co., 103 U.S. 11, virtually disposes of this contention. In that case the plaintiff's intestate met his death in the state of New Jersey, and the qualification upon his estate was had in the state of New York, and the suit instituted in the latter state to recover damages caused by the negligent killing of deceased, under a statute of New Jersey which is strikingly like the Virginia statute. Mr. Justice Miller, speaking for the supreme court, says:

'It is difficult to understand how the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common-law right. Whenever, by either the common law or the statute law of a state, a right of action has become fixed, and a legal liability incurred, that liability may be enforced, and the right of action pursued, in any court which has jurisdiction of such matters, and can obtain jurisdiction of the parties. * * * But it is said that, conceding that the statute of the state of New Jersey established the liability of the defendant, and gave a remedy, the right of action is limited to a personal representative appointed in that state, and amenable to its jurisdiction. The statute does not say so in terms. ' Every such action shall be brought by and in the name of the personal representatives of such deceased person.' * * * The plaintiff is, then, the only personal representative of the deceased in existence, and the construction thus given the statute is that such a suit shall not be brought by her. This is the direct contradiction of the words of the statute. The advocates of this view interpolate into the statute what is not there, by holding that the personal representative must be one residing in the state, or appointed by its authority. The statute says that the amount recovered shall be for the exclusive benefit of the widow and next of kin. Why not add here, also, by construction, 'if they reside in the state of New Jersey?' It is obvious that nothing in the language of the statute requires such a construction. Indeed, by inference it is opposed to it. The first section makes the liability of the corporation or person absolute where the death arises from their negligence. Who shall say it depends on the appointment of an administrator within the state?'

The plea to the merits of the general issue in this case unquestionably admitted the representative capacity of the plaintiffs, and their right to institute and maintain the suit. Society for the Propagation of the Gospel v. Town of Pawlet, 4 Pet. 480; Pullman v. Upton, 96 U.S. 328; Wise v. Getty, 3 Cranch, C.C. 292, Fed Cas. No. 17, 909; Hughes v. Clayton, 3 Call, 554; Wms. Ex'rs (7th Eng.Ed.) 1887-88. And the doctrine of the earlier cases in the supreme court would have been conclusive of the present controversy, as the plaintiffs' disability to sue could only have been raised by plea in abatement, which, under the Virginia statute (Code Va. Sec. 3260, as amended Feb. 1, 1898), could not be filed after the defendants had demurred, pleaded in bar or answered to the declaration or bill, nor after a decree nisi, or conditional judgment, at rules. In other...