Mississippi Power Co. v. Archibald

• Decision Date: 10 June 1940
• Docket Number: 34183
• Citation: 189 Miss. 332,196 So. 760
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI POWER CO. v. ARCHIBALD

196 So. 760

189 Miss. 332

MISSISSIPPI POWER CO. v. ARCHIBALD

No. 34183

Supreme Court of Mississippi, Division B

June 10, 1940

Suggestion Of Error Overruled September 4, 1940.

APPEAL from the circuit court of Kemper county, HON. JOHN C STENNIS, Judge.

Action by James P. Archibald, administrator of the estate of James V. Swearingen, deceased, against the Mississippi Power Company for the death of James V. Swearingen, deceased. Defendant's petition to remove the case to the District Court of the United States for the Eastern Division of the Southern District of Mississippi was denied and there was a judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Wilbourn Miller & Wilbourn, of Meridian, and Eaton & Eaton, of Gulfport, for appellant.

The court below erred in denying the petition to remove the case into the District Court of the United States.

Notwithstanding this suit is by an administrator who, when appointed and when suit was filed, was a resident of the State of Maine, the same state as that under which appellant is incorporated, the right to remove still exists since, under Section 510, Code of Mississippi 1930, under which the suit is brought and the facts set forth in the declaration, the real parties at interest are the widow and children, and the administrator under our law is but a mere nominal party whose residence is immaterial.

The narrow question here involved is as to whether or not under the terms of Section 510 of the Code of Mississippi, 1930, properly construed, the administrator is a real rather than a nominal party so that his residence rather than that of the widow and children will control on the question of federal jurisdiction.

Sec. 510, Code of 1930.

Section 510 specifically designates the widow and children as the ones entitled under the law to recover. The right of recovery is not in the personal representative but in the widow and children. The persons entitled to recover, to-wit; the widow and children, may sue either in their own name or in the name of the personal representative. The personal representative is entitled to no damages, and can pay no debts of the decedent out of the recovery. The statute specifically says that the recoverable damages "shall go to" the legal representative and be subject to debts only in the event there are none of the next of kin described in the statute entitled to recovery. Neither the damages to the decedent, nor to the widow and children in this case "go to" the personal representative of the estate in any event, and he is clearly not the person under the facts in the case "entitled under the law to recover." The result is that the administrator is purely a formal or nominal party in whose name the persons entitled to recover may or may not sue as they see fit.

General Motors v. N. O. & G. N. R. R., 125 So. 541, 156 Miss. 122.

Ordinarily, the residence of the administrator controls on the issue of diversity of citizenship on removal. See Hess v. Reynolds, 113 U.S. 73, 28 L.Ed. 70; Amory v. Amory, 95 U.S. 186, 24 L.Ed. 428; B. & O. R. R. v. Koontz, 104 U.S. 5, 26 L.Ed. 643; Bonnafee v. Williams, 3 How. 574, 1 L.Ed. 732. Compare Webb v. So. Ry., 248 F. 18, certiorari denied, 62 L.Ed. 1245, and compare Bogue v. Chicago, etc., 193 F. 728.

This rule is based upon the fact that the administrator has the legal title under his appointment. But such is not the case under Section 510, Code of Mississippi 1930, where there are a surviving widow and children. The cause of action and the recovery are theirs. In such cases no title to damages recoverable for wrongful death under Section 510 vests in an administrator by virtue of his appointment. The administrator's name merely may be used.

The case of Mecom, Admr., v. Fitzsimmons Drilling Co., 284 U.S. 183, 76 L.Ed. 233, 77 A. L. R. 904, is not controlling here, for the reason that under the proper construction of Section 510, Code of 1930 of Mississippi, the administrator is in no event more than a mere nominal party.

Bacon v. Rives, 106 U.S. 99, 27 L.Ed. 69; N.Y.Evening Post v. Chaloner, 265 F. 214; McNutt v. Bland, 2 How. 9, 11 L.Ed. 159.

Davis & Hathorn and Haskell Carter, all of Louisville, Joe Daws, of DeKalb, and Jas. A. Cunningham, of Booneville, for appellee.

The administrator's right to remove this cause to the federal court involves a construction of Section 71 of Title 28, U.S.C. A. and the trial court, of course, felt itself bound by the latest holdings of the U.S. Supreme Court. This was properly so held and this appellate court will and should be bound by the U.S. Supreme Court in the construction of said federal statute.

Wm. H. Mecom, Admr., etc., of Archie Lee Smith, Dec'd, v. Fitzsimmons Drilling Co. et al., 77 A. L. R. 904; Chambers et al. v. Anderson, 58 F.2d 151; Memphis St. Ry. Co. v. Moore, 61 L.Ed. 733 and notes; Maybin v. Knighton, 67 Ga. 103.

Counsel for appellant concede that under the general rule the citizenship of an administrator controls and not that of the beneficiaries in death claims, and they undertake to say the law which so determines it is not the law if given a proper construction.

Mecom, Admr., v. Fitzsimmons Drilling Co., 77 A. L. R. 904; Grand Trunk R. Co. v. Kaplansky et al. (Mich.), 258 N.W. 423.

Page v. Wabash R. Co., 270 U.S. 277, 12 Am. & Eng. Ann. Cases 518, involved a case of an administrator of an estate of a decedent who was appointed in a state which appeared to have a purpose of hampering the question of diversity of citizenship, and the supreme court held that the citizenship of the administrator was determinative of the subject of diversity of citizenship and the fact that a man was appointed administrator from a different state from the residence of his decedent could not be gone into by the railroad defendant in a damage suit brought by the administrator.

Hill v. Henderson, 6 S. & M. 349; Patch v. Wabash R. Co., 52 L.Ed. 204; Hess v. Reynolds, 38 L.Ed. 927; Continental Life Ins. Co. v. Rhoads, 30 L.Ed. 380; Neil v. Penn Co., 39 L.Ed. 654; Amory v. Amory, 24 L.Ed. 428; Baltimore, etc., R. Co. v. Koontz, 26 L.Ed. 643; Kansas City, etc., R. Co. v. Daugherty, 28 L.Ed. 70; Heicht v. Cary (Wyo.), 110 Am. St. Rep. 981; Green v. Kehoe (Mich.), 113 Am. St. Rep. 558; Kidd v. Bates, 74 Am. St. Rep. 17; San Pedro R. Co. et al. v. Bailey (Nev.), Am. and Eng. Ann. Cas., 1912A, 743.

We cannot take the strained, self-serving construction put upon Sec. 510 of the Annotated Code of 1930, which is an unheard of construction, just to suit the convenience of this case. In the face of all these authorities, learned counsel maintain that an administrator, plaintiff, is nothing more than a mere nominal party and that the beneficiaries have all the right. Our court has given no expression of any such a conception.

Miss. Power & Light Company v. et al. v. Smith (Miss.), 153 So. 376; Newman Lbr. Co. v. Scipp (Miss.), 91 So. 11; Mecom v. Fitzsimmons Drilling Co., 77 A. L. R. 904.

Argued orally by R. E. Wilbourn, for appellant, and by Jas. A. Cunningham and Hoy Hathorn, for appellee.

OPINION

McGehee, J.

The intestate, James V. Swearingen, received an electric shock while engaged in throwing a piece of baling wire over the 2, 300 volt electric transmission lines of the distribution system belonging to the state of Mississippi, and constituting a part of the East Mississippi Insane Hospital property at Meridian in Lauderdale county, Mississippi, and from which shock and injury he later died.

It may be assumed for the purposes of this decision, and as the testimony tends to show, that the deceased had a fixed place of residence in Kemper county, Mississippi, at the time of his death, although employed as an attendant at the said Insane Hospital, where he then resided with his wife and children while so employed.

The appellant, a non-resident corporation, chartered and domiciled in the state of Maine, was sued as the sole defendant, and charged with negligence in transmitting electric current through the high-powered lines over which the baling wire was thrown, where the wires, uninsulated, had been installed and located by the state several years prior thereto, in close proximity to a building on which the deceased was standing when he threw the baling wire which was to be tied to a radio aerial, so that the aerial might be pulled over the transmission line, and fastened to the upper story of the building.

James P. Archibald, administrator, appellee herein, is also a resident of the state of Maine. It appears that the widow of the said James V. Swearingen, deceased, waived her right to be the administratrix of his estate, and permitted the said Archibald to be appointed as administrator. Letters of administration, or an ancillary administration, was granted by the Chancery Court of Kemper county, Mississippi, on the 5th day of October, 1938, and on which date the said James P Archibald, as such administrator, instituted this suit, returnable to the November term of the Circuit Court of said county. On the return day the appellant filed its petition and bond for the removal of the case to the district court of the United States for the eastern division of the southern district of Mississippi, sitting at Meridian; after notice of its intention to present the petition had been duly given. The petition alleged, among other things, that James V. Swearingen, deceased, left surviving him his widow, Mrs. Beatrice Swearingen, and his three minor children, Osborne, Lucille and Kennedy Swearingen, all of whom were at the commencement of this suit, and continuously thereafter have been, and now are, resident citizens of...