La May v. Maddox

• Decision Date: 07 October 1946
• Docket Number: No. 173.,173.
• Citation: 68 F. Supp. 25
• Parties: LA MAY v. MADDOX et al.
• Court: U.S. District Court — Western District of Virginia

68 F. Supp. 25

LA MAY v. MADDOX et al.

No. 173.

District Court, W. D. Virginia, at Lynchburg.

October 7, 1946.

M. F. Trader, and W. H. Jordan, both of Lynchburg, Va., for Irving J. LaMay, Administrator.

E. Marshall Frost (of Caskie, Frost & Watts), of Lynchburg, Va., for Henry Dorison Maddox and M. M. Maddox.

BARKSDALE, District Judge.

A motion by defendants in this case raises the question of whether a Connecticut personal representative, who has not qualified as such in Virginia, can maintain in this court an action for the death by wrongful act of his decedent in Virginia. Of course, the right which he asserts is grounded upon the Virginia version of Lord Campbell's Act, Virginia Code, §§ 5786-5790, and, this court having jurisdiction by reason of diversity of citizenship, his right to maintain his action in this court depends upon whether he is permitted so to do by the Virginia Death by Wrongful Act statute, and not precluded therefrom by any other statute or public policy. Speaking of an action for death by wrongful act, Section 5787 of the Virginia Code provides: "Every such action shall be brought by and in the name of the personal representative of such deceased person. * * *"

Nowhere in this or any other statute is there any limitation or qualification of the term "personal representative" just quoted, nor any express provision that he must qualify in Virginia before instituting his action. However, there is, of course, the general rule of the common law that a personal representative can sue only in the state in which he was appointed, and there is a Virginia statute enacted in 1924 which provides that, "No person not a resident of this State * * * shall be appointed or allowed to qualify as personal representative of any decedent, * * * unless there be also appointed to serve with the non-resident personal representative * * *, a person resident in this State * * *." Code 1942, § 5400a.

Defendant contends that the force and effect of the common law rule, and more particularly of the statute just quoted, is to restrict the right of maintaining an action in Virginia for death by wrongful act to a personal representative appointed and qualified by a Virginia court.

This question, in somewhat different form, and prior to the enactment of the last quoted Virginia statute, came before my distinguished predecessor, Honorable Henry Clay McDowell, in this court, in 1923. Pearson v. Norfolk & Western Railway Co., D. C., 286 F. 429. There, a North Carolina administrator instituted his action in this court against a Virginia corporation for the death by wrongful act of his decedent in West Virginia. As Judge McDowell observed (286 F. at page 431): "The question whether in the case at bar the West Virginia statute was intended to give the right of action to an administrator appointed in North Carolina, or to an administrator appointed in West Virginia, or to an administrator appointed in Virginia, is not raised."

And it is further to be noted that the Virginia statute, restricting the right of qualification to residents, had not then been enacted. So the question for determination there was whether the common law rule or any public policy precluded a foreign administrator from maintaining his action for death by wrongful act in Virginia. Judge McDowell pointed out that there, as here, any recovery which might be obtained would constitute a fund which under the statute is not to be administered, but is merely to be distributed. His conclusion was, that "The only even passably good reason for the rule that a personal representative may not sue outside of the state of his appointment is the protection of possible local creditors of the decedent.", and that, as the creditors could have no possible interest in a recovery for death by wrongful act, there was no reason for the rule in this case, and therefore he would not apply it, but would permit the North Carolina personal representative to maintain his suit.

From oral argument, I gather that defendants' counsel have no quarrel with this holding, but they maintain that the above quoted Virginia statute, restricting the right of qualification to residents changes the situation and precludes a non-resident personal representative from maintaining an action for death by wrongful act in Virginia. I cannot agree with this conclusion. There is no more reason for applying the common law rule in this case than there was at the time of the decision of the Pearson case. Pearson v. Norfolk & Western Railway Co., supra. Any recovery...