Minnehaha County, SD v. Kelley, 12985.

Decision Date11 July 1945
Docket NumberNo. 12985.,12985.
Citation150 F.2d 356
PartiesMINNEHAHA COUNTY, S. D., v. KELLEY.
CourtU.S. Court of Appeals — Eighth Circuit

John B. Shultz, of Sioux Falls, S. D. (John R. McDowell, of Sioux Falls, S. D., on the brief), for appellant.

Holton Davenport, of Sioux Falls, S. D. (Ellsworth E. Evans and Louis R. Hurwitz, both of Sioux Falls, S. D., on the brief), for appellee.

Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellee, a resident and citizen of the State of California, as special administratrix of the estate of James Vere Seigfred, deceased, to recover damages for the death of said James Vere Seigfred by wrongful act. We shall refer to the parties as they appeared in the trial court.

As basis for defendant's liability, it is alleged in the complaint that plaintiff's decedent, while driving a motor vehicle northerly upon or across a bridge on a north and south graveled county highway in Minnehaha County, South Dakota, was precipitated into the ditch or draw spanned by said bridge, receiving injuries from which he subsequently died; that for several months prior to June 14, 1943, the date of the accident, the bridge had become out of repair so as to endanger the safety of public travel; that the defendant had knowledge and notice of the unsafe condition of said bridge for a period of more than twenty-four hours prior to its collapse but failed to cause to be erected substantial barriers to guard the public from accident or injury, as provided by statute; that the bridge was out of repair in that the bed or bottom of the draw or ditch spanned by the bridge was washed, eroded and carried away by the water passing through the ditch or draw, and while plaintiff's decedent was attempting to cross the same it collapsed as a result of the washing away and erosion of the earth upon which the abutments had been constructed; that decedent was survived by his father and his mother, who suffered pecuniary loss in the sum of $10,000.

Defendant moved to dismiss the complaint on the ground that it failed to state a cause of action and that the court did not have jurisdiction over the parties or the subject matter. This motion was denied, whereupon defendant answered, admitting the citizenship of plaintiff and her appointment as special administratrix; admitted that it was in charge of the maintenance and repair of the highway on which the bridge in question was located; that the bridge collapsed, but denied that the collapse was caused by want of proper repairs; that the collapse had occurred shortly prior to the accident and was caused solely and entirely by excessive and unusually copious rainfall. The answer also pleaded contributory negligence on behalf of deceased.

At the close of plaintiff's evidence, defendant interposed a motion for a directed verdict, which was denied. It then introduced evidence in support of its defense, and the cause was submitted to the jury on instructions to which neither party saved exceptions. The jury returned a verdict in favor of plaintiff for $7,500, and judgment was entered thereon.

In seeking reversal defendant contends that: (1) the court erred in denying its motion to dismiss the complaint; (2) the court erred in overruling objections of defendant to questions propounded to the witness Frederick H. Schroeder; (3) the court erred in overruling objections of defendant to questions propounded to the witness Melvin L. Nelson; (4) the court erred in limiting the cross-examination of plaintiff's witnesses; (5) the court erred in permitting plaintiff's counsel to impeach its own witness; (6) the court erred in allowing plaintiff to introduce in evidence the physical condition of decedent's parents who were the beneficiaries; (7) the court erred in permitting the introduction of documentary evidence consisting of weather reports; (8) the court erred in denying complete examination of the witness Frederick H. Schroeder to show the depth of the draw and water course leading to the bridge in question; (9) the court erred in denying defendant's motion for a directed verdict and in entering judgment.

By its motion to dismiss the complaint defendant has raised two questions: (1) the sufficiency of the allegations of the complaint to constitute a cause of action, and (2) the jurisdiction of the court over the parties. Decedent was a resident and citizen of the State of South Dakota. His father and mother, who are named as the beneficiaries in the complaint, were at the time of the commencement of the action residents and citizens of the State of South Dakota. The administratrix, as has been observed, was a resident and citizen of the State of California. Rule 17(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides in part as follows: "Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust * * * or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; * * *."

Plaintiff sued in a representative capacity; she was a resident and citizen of the State of California; she was the only necessary or proper party plaintiff. Parties acting in a representative capacity, if jurisdictional requirements are otherwise satisfied, have the right to maintain a civil action in a Federal court, and the citizenship of the representative party controls irrespective of the citizenship of the persons for whose benefit the action may be brought. In other words, the Federal courts have jurisdiction of actions by or against executors and administrators, if their citizenship is diverse from that of the opposing party. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904; Mexican C. R. Co. v. Eckman, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245.

Defendant also contends that the complaint did not state facts sufficient to constitute a cause of action. In South Dakota a county can not be held liable for damages for death by wrongful act or personal injuries except as expressly authorized by statute. Plaintiff predicates her right of action and the liability of defendant county upon Section 28.0913 of the South Dakota Code of 1939, which reads in part as follows:

"In case any highway, culvert, or bridge shall become in whole or in part destroyed or out of repair by reason of floods, fires, or other cause to such an extent as to endanger the safety of public travel, it shall be the duty of the governing body or board under statutory duty to maintain such highway, culvert, or bridge upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and to repair the same within a reasonable time thereafter. * * *

"Any person who shall sustain injury to person or property by reason of any violation of this section shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained."

Defendant urges that the complaint alleged negligence in construction and that there can be no recovery of damages resulting from structural defect. Reaney v. Union County, S.D., 10 N.W.2d 762; Id., S.D., 12 N.W.2d 14; Jackson County v. Dufty, 8 Cir., 147 F.2d 227. Reference to the complaint, however, discloses that the negligence alleged was not that which went to the original structure, but to the failure of the defendant properly to maintain and repair the bridge. Thus, it is alleged that, "For an extended period of time, being several weeks or more prior to June 14, 1943, said bridge had become out of repair to such an extent as to endanger the safety of public travel thereon." It is also alleged that, "Surplus water passing through said ditch or draw had a direct tendency to wash away and did in fact wash away and carry off dirt and clay in close proximity to said south wall or abutment, rendering said south wall or abutment in a highly unstable condition and likely to fall and collapse, with the resulting fall of said bridge structure from further flowage of such surplus water than was reasonably to be anticipated." It is observed too that it was the contention of defendant that the collapse of the bridge "occurred shortly prior to the passage of the said James Vere Seigfred over said county highway and was caused solely and entirely by excessive and unusual rainfall shortly prior to the collapse of said bridge."

The court in its instructions, to which no exceptions were saved by either party, in referring to the statute authorizing recovery said, "The statute does not fix any liability for damages resulting solely from inherent structural defects in the design or structure of the bridge." In stating the nature of the defense, the court, among other things, said that the defendant "admits that this particular bridge was a part of the highway system of the county and that the county was charged with the statutory duty of maintaining this bridge in, and keeping it in, good repair and safe condition for public travel. And by way of defense they alleged the bridge was washed out, not because of any neglect or failure on the part of the county or any of its officers, but that it collapsed as a result of an unusually heavy rain storm."

The complaint clearly charges negligence in the failure to maintain and repair, and there was apparently no claim in the trial court that the accident resulted from any structural defect. We think the complaint stated a good cause of action and that the issue raised by the pleadings was in fact the issue submitted to the jury.

Defendant challenges the sufficiency of the record to entitle plaintiff to a review of certain of these...

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