McCoy v. Blakely

• Decision Date: 31 January 1955
• Docket Number: No. 15067.,15067.
• Citation: 217 F.2d 227
• Parties: Harry W. McCOY, Appellant, v. Floyd T. BLAKELY, Personal Representative and Administrator of the Estate of Mary Nadine Catron, Deceased, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

217 F.2d 227 (1954)

Harry W. McCOY, Appellant, v. Floyd T. BLAKELY, Personal Representative and Administrator of the Estate of Mary Nadine Catron, Deceased, Appellee.

No. 15067.

United States Court of Appeals Eighth Circuit.

December 2, 1954.

Rehearing Denied January 31, 1955.

COPYRIGHT MATERIAL OMITTED

C. F. Connolly, Omaha, Neb. (Robert G. Fraser and Fraser, Connolly, Crofoot & Wenstrand, Omaha, Neb., on the brief), for appellant.

Wiley E. Mayne, Sioux City, Iowa (Jesse E. Marshall, Sioux City, Iowa, Harry N. Larson, Wakefield, Neb., and Shull & Marshall, Sioux City, Iowa, on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

This is an appeal from an order overruling a motion for judgment notwithstanding the verdict or for a new trial. The action was for damages arising out of an automobile-truck collision. The complaint was in two counts, one for damages for wrongful death and the second for damages to the decedent's automobile and for funeral expenses. Trial resulted in a jury verdict for plaintiff-appellee on both counts. Judgment was entered thereon. After denial of defendant-appellant's motion this appeal was instituted. The parties will be referred to herein as they were designated in the court below.

The accident giving rise to this action occurred on February 23, 1952. Mary Catron, plaintiff's decedent, was driving west on Highway No. 20 in Dixon County, Nebraska, accompanied by Mrs. Norman Anderson and Irene Manto. The defendant was driving east in a 1941 GMC one-and-a-half-ton stock truck. The two vehicles collided, the left front corner of the decedent's automobile coming in contact with the left side of the defendant's truck near the left front corner of the stock rack. The impact, as established by the testimony of several witnesses, occurred north of the center line of the pavement; in other words, on the decedent's side of the road.

Defendant's appeal is based on five points which will be separately considered.

Point No. 1 attacks the jurisdiction of the Federal Court. The deceased, Mary Catron, was a citizen and resident of the State of Iowa. She had been visiting her parents who resided in Nebraska, the state where the accident resulting in her death occurred. Following her death, an estate was created in LeMars, Plymouth County, Iowa, her place of residence. Her father, Ernest Catron of Battle Creek, Nebraska, was first appointed administrator on March 3, 1952 by the Iowa Probate Court. Ten months later he resigned and the present plaintiff, Floyd T. Blakely, a resident of LeMars, Iowa, was appointed in his stead. Blakely, under authorization from the Iowa Probate Court, instituted this action in the United States District Court for the District of Nebraska. This, the defendant contends, was contrary to law. His position is that the sole purpose of the resignation of Ernest Catron was to permit the appointment of an Iowa resident as administrator in order to create the diversity of citizenship requisite to this action, and that it therefore violated Section 1359 of Title 28 U.S.C.A. That section is as follows:

"Parties collusively joined or made. A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court."

Even if, as contended by the defendant, the appointment of Blakely was for the sole purpose of creating diversity of citizenship in order to invoke the jurisdiction of the Federal Court, that fact, without more, would not establish the alleged violation of the relied-upon statute. As was stated by this Court in Curb and Gutter Dist. No. 37 of City of Fayetteville v. Parrish, 8 Cir., 1940, 110 F.2d 902, 906, a case involving the appointment of a non-resident trustee for the purpose of creating diversity of citizenship in order to establish the jurisdiction of the Federal Court:

"* * *, the motive which may have actuated or induced the bondholders to select a non-resident trustee is immaterial. The appointment and qualification of the plaintiff trustee was real and bona fide. It was not merely colorable or feigned. No wrongful act was perpetrated in invoking the jurisdiction of this Court. In other words, the bondholders simply did that which was lawful and no fraud can be perpetrated thereon. It is not wrongful for parties to prefer to litigate the subject matter of a controversy in federal court if no improper act is done in furtherance thereof."

Such is the situation in the present case. The record shows no collusion or impropriety in the appointment of Blakely. Ernest Catron testified that he resigned as administrator because, living so far away from LeMars, Iowa, he felt he could not properly take care of the estate. The appointment of Blakely was made because he was a resident of LeMars, Iowa, and a former friend or associate of the deceased. The trial court made a specific finding that his appointment was not improper or collusive, and we think that the record establishes that no wrongful act was perpetrated in invoking the jurisdiction of the Federal Court. See Mecom v. Fitzsimmons Drilling Co., 1931, 284 U.S. 183, 189, 52 S.Ct. 84, 76 L.Ed. 233, and Harrison v. Love, 6 Cir., 1936, 81 F.2d 115, 117.

Point No. 2 also attacks the jurisdiction of the Federal Court. Defendant contends that all the real parties in interest, the parents of the deceased and the defendant, are residents of Nebraska, and that accordingly the diversity of citizenship required for Federal Court jurisdiction does not exist. He urges that the parents of the deceased, not the administrator, are the real parties in interest authorized to bring this action under the Nebraska wrongful death statute. He relies on State of Nebraska v. Northwestern Engineering Co., D.C.Neb.1946, 69 F.Supp. 347, as authority for the proposition that the citizenship of the parents, not that of the administrator, controls the question of removability through diversity of citizenship in a wrongful death action. We cannot construe the cited case in such a manner. In that case, the State of Nebraska instituted a wrongful death action together with a second cause for damages to the automobile operated by the decedent which belonged to the State of Nebraska. The defendants, residents of South Dakota, removed the action to the Federal Court on grounds of diversity. Although a state is not a "citizen" within the contemplation of the Removal Act, the Federal Court upheld the removal of the first cause, the wrongful death cause, since the real party in interest was the administratrix, the state being merely a nominal party. The court, after reviewing the Nebraska decisions, stated at page 353:

"The foregoing decisions compel the conclusion that the administratrix * * * is the real party in interest, or the real plaintiff, as respects the first cause of action."

It is interesting to note that the decision in the case cited above was rendered by Judge Donohoe who was also the trial judge in the instant case. In overruling the defendant's motion for judgment notwithstanding the verdict or for a new trial, he rejected defendant's argument and held that the instant case was controlled by Mecom v. Fitzsimmons Co., supra. We agree that what was said by the United States Supreme Court therein, 284 U.S. at page 186, 52 S.Ct. at page 85, is controlling:

"It is settled that the federal courts have jurisdiction of suits by and against executors and administrators if their citizenship be diverse from that of the opposing party, although their testators or intestates might not have been entitled to sue or been liable to suit in those courts for want of diversity of citizenship. (Cases cited.)

* * * * * *

"The petitioner insists that where an administrator is required to bring the suit under a statute giving a right to recover for death by wrongful act, and is, as here, charged with the responsibility for the conduct or settlement of such suit and the distribution of its proceeds to the persons entitled under the statute, and is liable upon his official bond for failure to act with diligence and fidelity, he is the real party in interest, and his citizenship, rather than that of the beneficiaries, is determinative of federal jurisdiction. This we think is the correct view."

Defendant attempts to distinguish the Mecom case from the case at bar, arguing that to permit this action to be brought in the Federal Court will defeat the purpose of the Nebraska statute creating the cause of action since the avails of the suit will be distributed in accordance with Iowa law rather than Nebraska law. There is no merit in such an argument. Iowa is in accord with the principle that the law of the place of wrong governs the right of action for death; thus under Iowa law the avails will be distributed in accordance with the Nebraska statute creating the cause of action. In re Williams' Estate, 1906, 130 Iowa 553, 107 N.W. 608. We think that proper diversity of citizenship was present and that the Federal Court did have jurisdiction.

In Point No. 3 the defendant...