McWilliams v. Dawson, Civ. No. 758.

• Decision Date: 01 February 1943
• Docket Number: Civ. No. 758.
• Citation: McWilliams v. Dawson, 48 F.Supp. 538 (N.D. Tex. 1943)
• Parties: McWILLIAMS v. DAWSON et al.
• Court: U.S. District Court — Northern District of Texas

48 F. Supp. 538

McWILLIAMS v. DAWSON et al.

Civ. No. 758.

District Court, N. D. Texas, Dallas Division.

February 1, 1943.

Cheek, Gibson & Savage, of Oklahoma City, Okl., and George Sergeant, of Dallas, Tex., for the motion.

Little & Smith, of Madill, Okl., and Richardson, Shartel, Cochran, Chilson & Pruet, and Earl Pruet, all of Oklahoma City, Okl., opposed.

ATWELL, District Judge.

The plaintiff, as administratrix, by appointment of the probate court of Dallas County, Texas, sues for $50,172.40 for the benefit of herself, as surviving spouse, and six minor children, for the alleged negligent death of Archie McWilliams, husband and father.

She claims that he was killed by the falling of a cable which spanned the Washita River. That one end of the cable was knowingly and negligently attached to a socket in such a manner that it was inherently and "imminently" dangerous. That it was sold and installed by the defendants to the Union Construction Company and Paul B. Reis.

The defendants are residents of Texas. The plaintiff is a resident of the state of Oklahoma, as are also the children.

The defendants move to dismiss on two grounds, (a) that the plaintiff being an appointee of the probate court of Dallas County, Texas, there is no diversity; (b) that there is no privity of contract between the plaintiff and the defendants.

Rule 17 of Civil Procedure, in subdivision (a), 28 U.S.C.A. following section 723c, provides that "every action shall be prosecuted in the name of the real party in interest; but an * * * administrator * * * or a party authorized by statute may sue in his own name * * *."

The fact that the probate court saw fit to appoint a resident of Oklahoma as administratrix, does not rob that person of her citizenship or residence. She is still a resident of Oklahoma. She alleges that both she and the children reside there. Residence rather than appointment is the determining factor in diversity. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904; Robinson v. First National Bank, D.C., 45 F.2d 613, affirmed 5 Cir., 55 F.2d 209.

The second ground must also be determined against the mover. Conceding that it is the general rule that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles, the exception is that an act of negligence by a manufacturer or vendor which is imminently dangerous to human life or health and which occurs in the preparation or sale of articles, makes the vendor or manufacturer liable for injuries resulting from his negligence. Standard Oil v. Murray, 7 Cir., 119 F. 572, 575; Ketterer v. Armour & Co., 2 Cir., 247 F. 921.

If the duty arises, without reference to any relation assumed by contract, from circumstances in which the presence or absence of a contract is equally immaterial, in a legal point of view, they are not restricted to persons who are parties or privies to a contract...