Jamison v. Memphis Transit Management Company

• Decision Date: 02 August 1967
• Docket Number: No. 17289.,17289.
• Parties: Hardy Lee JAMISON, Jr., Father and Next of Kin of Hardy Lee Jamison, III, Deceased, Plaintiff-Appellee, v. MEMPHIS TRANSIT MANAGEMENT COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

381 F.2d 670 (1967)

Hardy Lee JAMISON, Jr., Father and Next of Kin of Hardy Lee Jamison, III, Deceased, Plaintiff-Appellee, v. MEMPHIS TRANSIT MANAGEMENT COMPANY, Defendant-Appellant.

No. 17289.

United States Court of Appeals Sixth Circuit.

August 2, 1967.

Elmore Holmes, III, Memphis, Tenn., W. Rowlett Scott, Memphis, Tenn., on the brief; Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, Tenn., of counsel, for appellant.

Robert R. Krivcher, and Joe W. Darden, Memphis, Tenn., for appellee.

Before PHILLIPS, CELEBREZZE and McCREE, Circuit Judges.

PHILLIPS, Circuit Judge.

This is a diversity case originating in Tennessee brought for the wrongful death of a five year old child. The complaint was filed under the Tennessee wrongful death statute, T.C.A. §§ 20-607 and 20-608, by the father, a resident of California, on his own behalf and as next of kin of the deceased, against a Tennessee corporation. The mother, who is a resident of Memphis, Tennessee, was not joined as a party to the action.

The father moved from Tennessee to California, where he obtained a divorce in 1964. The divorce decree was silent as to the custody of the deceased child, who had remained with the mother in Memphis. Although both parents have remarried, the father had continued to contribute to the support of the child.

Appellant challenged the jurisdiction of the district court on the ground that under the Tennessee wrongful death statute the right of action for the death of a child vests in both parents, thereby making the mother an indispensable party plaintiff.

The district court overruled appellant's motion to dismiss for lack of jurisdiction and let the case go to the jury, which returned a verdict against appellant for $25,000.

The sole issue on this appeal is whether the mother is an indispensable party plaintiff, thereby destroying diversity of citizenship.

The present Tennessee wrongful death statute which was in effect at the time of the accident in which the child was killed on February 26, 1965, is set forth in the margin.¹

The statute now codified as T.C.A. § 20-607 has been amended substantially from time to time, and now differs materially from the earlier versions in Tennessee's three previous official codes, which also are set forth in the margin.² The text of T.C.A. § 20-608 is exactly the same as § 8237 of the Code of 1932.

The reported decisions of the Tennessee Appellate Courts on this subject, many of which are cited in the briefs in the present case, are to be read in the light of the language of the statute in effect at the time the decision was rendered.

The wrongful death statute does not create a new cause of action, but simply preserves the decedent's right of action which otherwise would be extinguished by his death. Sharp v. Cincinnati, N. O. & T. P. Ry. Co., 133 Tenn. 1, 179 S.W. 375, Ann.Cas.1917C 1212. The right and remedy given are entirely of statutory origin, and exist and can be pursued only under the circumstances and in the mode prescribed by the statute. Webb v. East Tennessee, V. & G. Railway Co., 88 Tenn. 119, 12 S.W. 428.

It was not until 1959 that T.C.A. § 20-607 was amended by inserting the provision that the right of action for the wrongful death of a child shall pass "to his natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent and had not been legally surrendered by them, otherwise to his or her legally adoptive parents or parent."³

Prior to the enactment of the 1959 amendment, the Supreme Court of Tennessee held that the surviving parents are entitled, as next of kin, to maintain an action for the wrongful death of their child, and that both the surviving mother and the surviving father are real parties in interest. Gogan v. Jones, 197 Tenn. 436, 441, 273 S.W.2d 700.

Also prior to 1959, the Tennessee Court of Appeals held that when a suit had been commenced by a father for the wrongful death of his child, an amendment thereafter would be allowed to include the mother as a party plaintiff. The court held that such an amendment would be allowed even though the mother's right of action was barred by the statute of limitations, since the amendment related back to the filing of the original suit and did not introduce a new cause of action. In that case the court expressly pretermitted the question of whether the father could have maintained the action on behalf of both himself and his wife without joining her as a party plaintiff. Mosier v. Lucas, 30 Tenn.App. 498, 207 S.W.2d 1021.

The district court correctly held that the Tennessee wrongful death statute creates one, and only one, right of action in the survivors of decedent, no matter how many persons may be entitled to share therein. Wilson v. Barton, 153 Tenn. 250, 254, 283 S.W. 71.

In a case decided in 1963, after the enactment of the 1959 amendment, where the parents had been divorced prior to the death of their child and the divorce decree awarded exclusive custody to the mother and only visitation rights to the father, the right of action for the wrongful death of the child was held to be vested exclusively in the mother. Damron v. Damron, 212 Tenn. 14, 367 S.W.2d 476. In the absence of an award of custody in the divorce decree, the right of action vests equally in both parents "regardless of questions of support or physical care." Damron v. Damron, supra, 212 Tenn. at 24, 367 S.W.2d at 480.

In Anderson v. Anderson, 211 Tenn. 566, 366 S.W.2d 755, also decided in 1963, it was held that a father who had abandoned his child was entitled to share equally with the mother in the recovery for the child's wrongful death.

Both Damron v. Damron and Anderson v. Anderson were decided, not upon the language of the 1959 amendment which was in effect at that time, but upon the basis that the father and mother are the next of kin of their deceased child and share equally in the distribution of personalty under the Tennessee statute of distribution, T.C.A. § 20-609.

The district court held that the joinder of parties is controlled by Rule 17(a) and Rule 19 of the F.R.Civ.P. He interpreted Rule 19, however, so as to hold that the mother is not an indispensable party to the present action.⁴

Where, as here, the substantive rights of the parties are founded on State law, it is essential that State law be examined in determining whether a party is "indispensable," although the question of the joinder of parties is controlled by the Federal rules. Only then can we ascertain whether the substantive rights of the mother in this cause of action are such as to constitute her an "indispensable" party; see the excellent discussion of this subject by Judge Wisdom in Kuchenig v. California Co., 350 F.2d 551 (C.A.5), cert. denied, 382 U.S. 985, 86 S.Ct. 561, 15 L.Ed.2d 473; see also Kroese v. General Steel Castings Corp., 179 F.2d 760 (C.A.3), cert. denied, 339 U.S. 983, 70 S.Ct. 1026, 94 L.Ed. 1386.

There can be no doubt under the foregoing decisions that the mother shares equally with the father as next of kin under Tennessee law in the right of recovery for the wrongful death of the child in the present case. This result is not changed by the 1959 amendment providing that the right of action passes to "his natural parents or parent." The primary purpose of the 1959 amendment was to define more clearly the rights of natural parents and adoptive parents, and not to change the existing rule that surviving natural parents have a joint right of action, with equal interests therein, as the surviving next of kin of the child. Damron v. Damron, supra, and Anderson v. Anderson, supra. We construe these words of the 1959 amendment to mean that the right of action vests in both parents if both parents survive, and in the surviving parent if only one parent survives. If the surviving parents are divorced, the right of action nevertheless vests in both of them, unless the divorce decree granted exclusive custody of the child to one parent, in which event the right of action passes to the parent to whom custody has been awarded by the decree of divorce, and this is true regardless of questions of support or physical care. Damron v. Damron, supra.

The 1966 amendment to Rule 19 of the F.R.Civ.P. discarded the time honored categories of "indispensable," "necessary" and "proper" parties "to eliminate formalistic labels that restricted many courts from an examination of the practical factors of individual cases." 2 Barron & Holtzoff, Federal Practice and Procedure (Wright's Ed.), 1967 pocket supplement § 511, at 23. Applying Rule 19(b) as it existed prior to the 1966 amendment, the district court apparently considered the mother to be a necessary party, but not an indispensable party.

Prior to the 1966 amendment, 2 Barron & Holtzoff, Federal Practice and Procedure (Wright's Ed.) § 511 at 85-87, described the distinction between "indispensable" parties and "necessary" parties as follows:

"Rule 19 deals with compulsory joinder of parties. It recognizes the time-honored classes of `indispensable,\' `necessary\' and `proper\' parties, first developed in the equity courts, and requires joinder, if possible, of parties falling into the first two of these classes.

"Indispensable parties are those without whom the action cannot proceed. They must be joined even if by such joinder the court loses jurisdiction over the controversy.

"`Necessary parties\' are those who have an interest in the controversy but whose interests are separable and will not be directly affected by a decree rendered in their absence, which does full justice between the parties before the court.

"The term `necessary parties\' is a misnomer. It does not mean `essential parties\'. Rather it means `desirable parties\' as distinguished from indispensable parties, on the one hand, and from proper parties, on the other hand. It means `parties who should be joined, if feasible\'."

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