Miller v. Perry, Civ. A. No. 770.
Decision Date | 02 May 1969 |
Docket Number | Civ. A. No. 770. |
Citation | 307 F. Supp. 633 |
Court | U.S. District Court — Eastern District of North Carolina |
Parties | Lonnie MILLER, Administrator of the Estate of Albert Miller, Jr., Deceased, and Albert Miller, Sr., Plaintiffs, v. Ely J. PERRY and Wife, Elizabeth Perry, Defendants. |
Darris W. Koonce, Trenton, N. C., Douglas P. Connor, Mt. Olive, N. C., for plaintiffs.
This action was instituted by Lonnie Miller, Administrator of the Estate of Albert Miller, Jr. and Albert Miller, Sr. against Ely J. Perry and wife, to recover damages for the alleged negligence of defendants resulting in the death of Albert Miller, Jr. The deceased and his father, Albert Miller, Sr., are non-residents of North Carolina. Lonnie Miller, the Administrator appointed in North Carolina, and defendants are residents of North Carolina.
Albert Miller qualified as Administrator of his son's estate in Florida. He instituted suit in this Court (Civil Action No. 737) in July 1967 against these defendants on the same cause of action. Judge Larkins dismissed that suit for the reason no such action may be maintained except in the name of an administrator who is a resident of North Carolina. North Carolina General Statutes § 28-8.
A North Carolina resident duly qualified as administrator and instituted this action. Defendants move to dismiss for lack of diversity.
At common law no right of action for wrongful death exists. It exists in North Carolina solely by statute. Horney v. Meredith Swimming Pool Company, 267 N.C. 521, 148 S.E.2d 554 (1966). "The right of action conferred by said statute vests in the personal representative of the deceased." Horney v. Meredith, etc., supra, First Union National Bank of North Carolina v. Hackney, 266 N.C. 17, 145 S.E.2d 352. The only party who may maintain such action for wrongful death is "the executor, administrator or collector of the decedent." General Statutes of North Carolina § 28-173; First Union National Bank of North Carolina v. Hackney, supra; Hall v. Southern R. R. Co., 149 N.C. 108, 62 S.E. 899. The right of action is for the personal representative of the deceased only. "The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased * * *." In Re Ives' Estate, 248 N.C. 176, 102 S.E.2d 807, 810, 72 A.L.R. 2d 278. A non-resident cannot qualify as the administrator of the assets of a decedent located in North Carolina. North Carolina General Statutes § 28-8. A North Carolina resident is the only one who can meet the requirements of the statute. The action can only be instituted by a personal representative duly qualified in North Carolina. General Statutes, supra, Horney v. Meredith, etc., supra; First Union National Bank of North Carolina v. Hackney, supra; Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544.
In Re Ives' Estate, supra 102 S.E.2d 807, at page 810, the Court said:
This Court said in Hartness v. Pharr, supra 133 N.C. 566, 45 S.E. 901, 903:
While the complaint here lists Albert Miller, Sr. as a party plaintiff, he has no standing as such and he has no right or cause of action.
Under the General Statutes of North Carolina § 28-173, the amount recovered in a death action is not liable to be applied as assets of the estate, "except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding five hundred dollars ($500.00) incident to the injury resulting in death * * * but shall be disposed of as provided in the Intestate Succession Act." First Union National Bank of North Carolina v. Hackney, supra.
"The personal representative who institutes a wrongful death action is not a mere figurehead or naked trustee but has authority as well as responsibility." First Union National Bank of North Carolina v. Hackney, supra.
Plaintiff says that the deceased and the father of the deceased were residents of Florida; that the father qualified as administrator of the deceased's estate in Florida; that he is the party who would be entitled to receive the distribution of any recovery in this action; and therefore, the administrator in North Carolina, plaintiff states, is only a "straw-man" or nominal party. He says the father of deceased is the real party in interest, and that diversity exists. On the other hand, defendant says the administrator is the real party in interest. This question was before the United States Supreme Court in Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, where at page 186, 52 S.Ct. 84, at page 85, 76 L.Ed. 233, 77 A.L.R. 904, it was said:
See also City of Detroit v. Blanchfield (C.C.A.Mich.), 13 F.2d 13, 47 A.L.R. 314.
It has been held that the same rule applies in the case of suits by administrators to recover for death by wrongful act, whether the statute provides that the amount recovered be for certain relatives of the decedent or be general assets of the estate. Harper v. N. & W. R. Co. (C.C.A.Va.), 36 F. 102; Popp v. C. H. & D. Ry. Co. (C.C. A.Ohio), 96 F. 465; C. H. & D. R. Co. v. Thiebaud (52 C.C.A. 538), 114 F. 918; Bishop v. B. & M. R. Co. (C.C. Mass.), 117 F. 771; Memphis St. Ry. Co. v. Bobo (146 C.C.A. 634), 232 F. 708.
In Grady v. Irvine, 254 F.2d 224, 226, 4th Cir., dealing with the same issue, the Court said:
It is settled that where a personal representative initially files an action for wrongful death, it is the residence of the representative, not that of his decedent, which is relevant in the resolution, for purposes of federal jurisdiction, of the question of diversity of citizenship. Mecom v. Fitzsimmons Drilling Company, 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233 77 A.L.R. 904.
Also pertinent to the issue here is the language of the Court in the Grady case, at page 28 254 F.2d 224, 228 where it was said:
The new action which, alone, the plaintiff now seeks to prosecute, if initially filed as such, under no circumstances could have been prosecuted by any one in the federal jurisdiction in Virginia. The defendant is a...
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Miller v. Perry
...that the citizenship of the administrator does not defeat diversity and reverse the order of the District Court dismissing the action, 307 F.Supp. 633. Albert Miller, Jr., a minor citizen of Florida, died in North Carolina, allegedly through the fault of the Perrys. His father was duly qual......