Mecom v. Fitzsimmons Drilling Co., 259.

• Decision Date: 12 February 1931
• Docket Number: No. 259.,259.
• Citation: 47 F.2d 28
• Parties: MECOM v. FITZSIMMONS DRILLING CO., Inc., et al.
• Court: U.S. Court of Appeals — Tenth Circuit

47 F.2d 28 (1931)

MECOM v. FITZSIMMONS DRILLING CO., Inc., et al.^*

No. 259.

Circuit Court of Appeals, Tenth Circuit.

January 20, 1931.

Rehearing Denied February 12, 1931.

Roy F. Ford, S. J. Montgomery, and Theo. H. Haugh, all of Tulsa, Okl., and A. H. Meyer, of Oklahoma City, Okl., for appellant.

H. C. Thurman, of Oklahoma City, Okl., and Ray S. Fellows, of Tulsa, Okl., for appellee Fitzsimmons Drilling Co.

George F. Short and C. W. King, both of Oklahoma City, Okl., and H. H. Hagan and T. A. Gavin, both of Tulsa, Okl., for appellee Atlantic Oil Producing Co.

Before LEWIS and COTTERAL, Circuit Judges, and POLLOCK, District Judge.

POLLOCK, District Judge.

This action was instituted in a state court of Oklahoma to recover damages on account of the death of Archie Lee Smith, alleged to have been caused by the negligence and wrongful act of the defendants Fitzsimmons Drilling Company, a corporation of Louisiana, and the Atlantic Oil Producing Company, a corporation of Delaware. Smith was injured on May 24, 1927, and died on the following day. He left surviving him his widow, Lillian Smith, and two small children. The statute of Oklahoma, sections 824 and 825, Compiled Statutes of 1921, provides that damages in such case inure to the exclusive benefit of the widow and children, if any, to be distributed to them in the same manner as personal property of the deceased.

The Supreme Court of that state, in St. Louis & S. F. R. Co. v. Goode, 42 Okl. 784, 142 P. 1185, L. R. A. 1915E, 1141, held that the damages recovered in such a suit become assets of the decedent's estate, but belong exclusively to the beneficiaries named therein. Shortly after the death of Smith, his widow was appointed administratrix, and she brought an action against the defendants in the state court, alleging she and the two children as beneficiaries had been damaged in a very large amount. The defendants removed that case to the federal court, and, the plaintiff being unsuccessful on her motion to remand, dismissed her action and shortly thereafter instituted another action like the first. This went through the same procedure as the first case. Thereafter she resigned as administratrix, and one William H. Mecom, a citizen and resident of the state of Louisiana, was appointed administrator by a probate court of Oklahoma. He then brought a like action in the state court. It was removed to the federal court. That court refused to remand it. The plaintiff dismissed, and then he brought this action in the state court, in which, as in the prior cases, he embodied two counts. In the first count he alleged that he sues for the use and benefit of the widow and two minor children, and asks damages in the sum of $100,000. In the second count he alleged deceased was conscious from the time he was injured until he died and on account of his injury suffered bodily pain and mental anguish from the time he was injured until he died, and prays damages in the sum of $3,000 therefor. The case was removed to the federal court, and, on the court's refusal to remand it, went to trial and resulted in favor of defendants. Appellant comes here assigning error that the court overruled his motion to remand to the state court.

The grounds for the removal of the case from the state to the federal court were, first, diversity of citizenship; and, second, a fraudulent intent and purpose on the part of Mrs. Smith and her attorney and the present plaintiff to defeat federal jurisdiction. Adverting to the last point, it appears that the resignation of Mrs. Smith and the appointment of Mecom in her stead was solely the act of her counsel who brought the prior suits and this one. He wrote to Mecom asking him if he would accept such an appointment. Mecom did not come to Oklahoma, but signified his willingness to accept the appointment solely as an accommodation. When he was appointed, the attorney for plaintiffs signed the required oath and appointed Mrs. Smith as his resident agent. He did not sign the petition for his appointment as administrator nor the required bond. His name was signed to the petition and bond by counsel for the plaintiff in this case who had brought the prior suits for Mrs. Smith. He had nothing further to do with the estate of deceased, and received no information about the estate. He gave no direction about the commencement of this or any other suit. He had no information about any litigation in which the estate might be interested, and was in no way related to the deceased. So far as he could learn, the deceased left no estate in the state of Louisiana. He acted in the matter merely to accommodate Mrs. Smith's attorney. Counsel for appellant contends that under the laws of Oklahoma the appointment of Mecom as administrator was a legal act, that Mrs. Smith and her counsel acted lawfully in the procuring of Mecom's appointment, and that their actions in that respect cannot be held to have been fraudulent conduct, and that inasmuch as Mecom and one of the defendants were citizens and residents of the same state the case could not be removed on the ground of diversity of citizenship. I pass this point for the present.

There was diversity of citizenship between the beneficiaries, Mrs. Smith and her two children on the one side, and both defendants on the other; and it is contended by counsel for appellees that the citizenship of the beneficiaries and not of the nominal plaintiff controls. The whole recovery, should there be any, on the first count, would go exclusively to the beneficiaries; no one else would have any interest therein. It would not belong to the estate of the deceased to be administered as other property of the estate, if any.

There can be no doubt but that, if the recovery had on the first count was to go into the estate of deceased to be administered as part of that estate, the administrator would be a proper and necessary party to the case, for in such event he and his bond as administrator would be held liable for its proper application and distribution. But, in the instant case, while by force of the statute creating a cause of action for death by wrongful act when no such right of action existed at the common law, the action is purely statutory, and an administrator may maintain the action for the sole use and benefit of the widow and children of the deceased, and on no other grounds, and for no other purpose. It is the contention of defendants in such case the administrator is a purely nominal party and those for whose use and benefit the action is brought and prosecuted are the real parties in interest. That for the purpose of determining the jurisdiction of the federal courts of our country regard is had to the real parties in interest and not the merely nominal party. Thus, in Stewart v. Baltimore & Ohio Railroad Co., 168 U. S. 445, 18 S. Ct. 105, 106, 42 L. Ed. 537, Mr. Justice Brewer, delivering the opinion for the court, said: "For purposes of jurisdiction in the federal courts, regard is had to the real, rather than to the nominal, party. Browne v. Strode, 5 Cranch, 303 3 L. Ed. 108; McNutt v. Bland, 2 How. 9 11 L. Ed. 159; State of Maryland, for the use of Markley v. Baldwin, 112 U. S. 490, 5 S. Ct. 278 28 L. Ed. 822. See, also, Gaither v. Farmers' & Mechanics Bank of Georgetown, 1 Pet. 37, 42 7 L. Ed. 43, in which the issue submitted to the jury was, as stated, one between the bank to the use of Thomas Corcorran, plaintiff, and Gaither, the defendant, upon which the court said: `This practice is familiar with the Maryland courts, and, when the action originates in that form, the cestui que use is regarded as the real party to the suit.' It is true those were actions on contract, and this is an action for a tort; but still in such an action it is evident that the real party in interest is not the nominal plaintiff, but the party for whose benefit the recovery is sought; and the courts of either jurisdiction will see that the damages awarded pass to such party."

In Maryland v. Baldwin, 112 U. S. 490, 5 S. Ct. 278, 279, 28 L. Ed. 822, Mr. Justice Field, delivering the opinion for the court, said: "So, in the present case, the state is a mere nominal party; she could not prevent the institution of the action, nor control the proceedings or the judgment therein. The case must be treated, so far as the jurisdiction of the circuit court of the United States is concerned, as though Markley was alone named as plaintiff; and the action was properly removed to that court."

See, also, Huff v. Hutchinson, 14 How. 586, 14 L. Ed. 553; Ferguson v. Ross (C. C.) 38 F. 161, 3 L. R. A. 322, and cases cited therein; Browne v. Strode, supra; McNutt v. Bland, supra; State of Indiana v. Glover, 155 U. S. 513, 15 S. Ct. 186, 39 L. Ed. 243.

It is further to be noted the petition for removal in this case pleads a separable controversy between the real parties in interest, Mrs. Smith and her two children. Also a collusive attempt on the part of Mrs. Smith and the foreign plaintiff administrator by collusion and fraud to defeat the jurisdiction of the federal courts. In such case the case of Cerri v. Akron-People's Telephone Company and the village of Cuyahoga Falls (D. C.) 219 F. 285, by a parity of reasoning would appear to be much in point. While that case is not like the present one in point of fact, by parity of reasoning it is alike in principle with the instant case. In that case, as here, the action was brought to recover damages for death by wrongful act of one William McCracken, a citizen of the state of Ohio, as were defendants the telephone company and the village of Cuyahoga Falls. In that case, as here, the widow of the deceased had the preferential right of appointment as the administratrix of the estate of her husband, and there, as here, the widow renounced her right of appointment, and the plaintiff, a citizen of the kingdom of Italy, was appointed administrator and brought the action to recover for the wrongful death in...