Markham v. City of Newport News, Va.

• Decision Date: 07 June 1960
• Docket Number: Civ. A. No. 684.
• Citation: 184 F. Supp. 659
• Parties: Marvine MARKHAM v. CITY OF NEWPORT NEWS, VA., a municipal corporation, et al.
• Court: U.S. District Court — Eastern District of Virginia

184 F. Supp. 659

Marvine MARKHAM v. CITY OF NEWPORT NEWS, VA., a municipal corporation, et al.

Civ. A. No. 684.

United States District Court E. D. Virginia, Newport News Division.

June 7, 1960.

Sacks & Sacks, Norfolk, Va. (Harold M. Stern, Norfolk, Va., of counsel), for plaintiff.

Harry L. Nachman, City Atty., Newport News, Va., for City of Newport News.

STERLING HUTCHESON, District Judge.

This is an action brought by a resident of California against the City of Newport News, Virginia, seeking to recover damages for injuries alleged to have been sustained as the result of negligence on the part of the city in the maintenance of a street. The plaintiff contends that this court has jurisdiction under the provisions of Title 28, § 1332 (commonly known as the Diversity Statute).

The city has filed a motion to dismiss the complaint for lack of jurisdiction of the Federal Court because of the provisions of Section 8-42.1, Code of Virginia, 1958 Supplement.

In 1958 the General Assembly of Virginia enacted a statute (Chapter 520), entitled:

"An Act to amend the Code of Virginia by inserting in Chapter 34 of Title 8 a section numbered 8-757.1, relating to courts in which claims, suits or proceedings may be asserted, instituted, or maintained against counties, cities, towns, districts, boards, commissions, officers, agencies and other political subdivisions of the Commonwealth and of counties, cities and towns."

Because of an emergency clause the statute became effective from its passage on March 29, 1958. That was before the occurrences here involved.

Chapter 34, Title 8, of the Code of Virginia is entitled "Recovery of Claims against the State". However, nowhere in that chapter is found authorization to sue the state or any of its political subdivisions for damages resulting from the tortious act of an agent. The chapter prescribes only which suits may, and how they may, be brought against the state. Eriksen v. Anderson, 195 Va. 655, 79 S.E. 2d 597.

The pertinent language of the 1958 act (c. 520) is:

"No claim, suit or proceeding for damages based on a tort shall be asserted, instituted or maintained against any county, city, town, district, board, commission, officer acting in his official capacity pursuant to the Constitution and laws of the Commonwealth, agency or other political subdivision of the Commonwealth or of any county, city or town except in a court of the Commonwealth established under or pursuant to the Constitution of Virginia and having jurisdiction and venue of such claim, suit or proceeding. The provisions of this section shall not apply to any such claims, suits or proceedings now pending in any other court, nor shall the provisions of this section apply to any cause of action arising prior to the effective date of this act."

In some unexplained manner this section was incorporated into the permanent volume of the Code of Virginia, not as a part of Chapter 34, Title 8 as specifically provided by the Legislature, but as a part of Chapter 3, Title 8, of the Code. Chapter 3 of the Code is entitled simply "Venue". Instead of being carried in the permanent volume as Section 8-757.1 in Chapter 34 of Title 8, the statute appears in the Code as Section 8-42.1 of Chapter 3. Whether this is attributable to a clerical error or to an interpretation of the editors is not material. What is material is, first, the intention of the Legislature and, second, whether the statute is or is not in violation of any provisions of the federal Constitution.

The intention of the Legislature to limit jurisdiction is too clearly shown by the language of the statute to require elaboration. Patterson v. The Bark Eudora, 190 U.S. 169, 23 S.Ct. 821, 47 L.Ed. 1002; United States v. Fisher, 2 Cranch 358, 2 L.Ed. 304; McGhee v. General Finance Corp., D.C.W.D.Va., 84 F.Supp. 24.

From the foregoing recital it is seen that the issue here concerns the right of a state to limit or prescribe the conditions upon which it, as a sovereign, or its political or municipal subdivisions, may be held answerable for a tort.

If the statute involves only venue, it follows that the federal court has jurisdiction and the motion of the City should be overruled. Upon the other hand, if the jurisdiction or right to sue is limited by the statute, the motion should be sustained.

The liability or non-liability of a municipal corporation is purely a matter local in nature. City of Detroit v. Osborne, 135 U.S. 492, 10 S.Ct. 1012, 34 L.Ed. 260. A suit against a municipal corporation is a local cause of action which may be tried only where the municipality is situated, regardless of the theory underlying the cause of action; that is, whether it be tort or contract. O'Toole v. United States, D.C.Del., 106 F.Supp. 804, 809; Parks Co. v. City of Decatur, 6 Cir., 138 F. 550. In such cases venue may be jurisdictional. Thus, it is the law in Virginia that where the sole forum for a suit against the Highway Commission is prescribed by statute, Davis v. Marr, 200 Va. 479, 106 S. E.2d 722, or where an action of ejectment may be brought, Stowers v. Harman, 128 Va. 229, 104 S.E. 703, the suit must be brought in the court specified in each instance by the appropriate statute. No other court has jurisdiction to hear the case. See also Burks Pleading and Practice, Section 37, at page 55 (4th Edition, Boyd and Koontz). It seems clear that an action against a municipality must, as a matter of jurisdiction, be brought in the court where the municipality is located because it is a local cause of action regardless of the underlying theory of the liability.

The issue presented seems to have been definitely settled by City of Detroit v. Osborne, supra.

In that case the plaintiff brought suit against the City of Detroit for personal injuries received in consequence of a defect in a sidewalk. In stating the issue on appeal Mr. Justice Brewer said:

"The city alleges error; and its principal contention is that, under the rulings of the supreme court of Michigan municipal corporations are not liable in damages for personal injuries of this nature, and that, such being the settled law of the state, it is binding upon the federal courts. This contention suggests two inquiries: First, What is the settled law of Michigan? and, second, if it be as claimed, is it binding upon the federal courts? The answer to the first inquiry is easy and clear. The precise question was presented in 1870 to the supreme court of Michigan, in the case of City of Detroit v. Blackeby, 21 Mich. 84."

After discussing decisions of the courts of Michigan, Justice Brewer continued:

"In answer to the first inquiry, it must therefore be affirmed that the law of Michigan is against any liability on the part of the city for injuries like those in this action."

Continuing the Court said:

"The second inquiry must be answered in the affirmative. If it is a matter of local law, that law is obligatory upon the federal courts."

After pointing out that the holding is not in harmony with the general rule nor in accord with views previously expressed by the Supreme Court, the opinion continues:

"But, even if it were a fact that the universal voice of the other authorities was against the doctrine announced by the supreme court of Michigan, the fact remains that the decision of that court, undisturbed by legislative action, is the law of that state. Whatever our views may be as to the reasoning or conclusion of that court is immaterial. It does not change the fact that its decision is the law of the state of Michigan, binding upon all its courts and all its citizens, and all others who may come within the limits of the state. The question presented by it is not one of general commercial law. It is purely local in its significance and extent. It involves simply a consideration of the powers and liabilities granted and imposed by legislative action upon cities within the state. While this court has been strenuous to uphold the supremacy of federal law, and the interpretation placed upon it by the federal courts, it has been equally strenuous to uphold the decisions by state courts of questions of purely local law. There should be, in all matters of a local nature, but one law within the state, and that law is not what this court might determine, but what the supreme court of the state has determined. A citizen of another state going into Michigan may be entitled under the federal constitution to all the privileges and immunities of citizens of that state; but, under that constitution, he can claim no more. He walks the streets and highways in that state entitled to the same rights and protection, but none other, than those accorded by its laws to its own citizens.

"This question is not a new one in this court." Citing Claiborne County v. Brooks, 111 U.S. 400, 410, 4 S.Ct. 489, 28 L.Ed. 470. See also Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10, 27 L.Ed. 359.

Quoting Claiborne County v. Brooks, the Court said:

"`It is undoubtedly a question of local policy with each state what shall be the extent and character of the powers which its various political and municipal organizations shall possess, and the settled decisions of its highest courts on this subject will be regarded as authoritative by the courts of the United States; for it is a question that relates to the internal constitution of the body politic of the state.'"

In Detroit the local policy of the State had been declared by the courts of the State. In the case at bar the local policy of the State has been declared by the Legislature. Considering the respective functions of the two branches of the government involved it would seem that such a declaration by the Legislative branch might be considered as the more authoritative in declaring local policy.

This clear statement of the rule of law applicable and the reason for the rule, should be sufficient to foreclose any further discussion of the subject. However, Detroit was decided in 1889 and the...