Mozingo v. Consolidated Construction Company

• Decision Date: 10 March 1959
• Docket Number: Civ. A. No. 2717.
• Parties: Alma C. MOZINGO, Administratrix of the Estate of Henry D. Mozingo, Jr., deceased, and Mayo E. Collier, Administrator of the Estate of Henry D. Mozingo, Jr., deceased, Plaintiffs, v. CONSOLIDATED CONSTRUCTION COMPANY, Inc., a corporation, and Clyde L. Collier and Hazel Dixon Collier, Co-executors of the Estate of James N. Collier, deceased, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

171 F. Supp. 396

Alma C. MOZINGO, Administratrix of the Estate of Henry D. Mozingo, Jr., deceased, and Mayo E. Collier, Administrator of the Estate of Henry D. Mozingo, Jr., deceased, Plaintiffs, v. CONSOLIDATED CONSTRUCTION COMPANY, Inc., a corporation, and Clyde L. Collier and Hazel Dixon Collier, Co-executors of the Estate of James N. Collier, deceased, Defendants.

Civ. A. No. 2717.

United States District Court E. D. Virginia, Norfolk Division.

March 10, 1959.

Maurice Steingold (Steingold, Steingold & Chovitz) Norfolk, Va., for plaintiffs.

Edw. L. Ryan, Jr., (White, Ryan & Reynolds) Norfolk, Va., for defendants.

WALTER E. HOFFMAN, District Judge.

On May 15, 1957, Henry D. Mozingo, Jr., was a passenger in a private aircraft owned by the defendant, Consolidated Construction Company, Inc., and allegedly operated by James N. Collier as agent for said corporation. Due to the alleged negligent operation of said aircraft by Collier in specifically violating sundry laws, rules, regulations, and minimum standards as prescribed by the Air Commerce Act of 1926, 49 U.S.C.A. § 171 et seq., and the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq., the airplane crashed and sank in Hatteras Inlet, North Carolina, which is a navigable channel. Both occupants of the aircraft were killed.

The plaintiff, Alma C. Mozingo, qualified as Administratrix of the Estate of Henry D. Mozingo, Jr., in the Circuit Court of Princess Anne County, Virginia. The defendants, Clyde L. Collier and Hazel Dixon Collier, qualified as personal representatives of the Estate of James N. Collier in the same court.

The plaintiff, Mayo E. Collier, qualified as Administrator of the Estate of Henry D. Mozingo, Jr., in the Superior Court for Dare County, North Carolina. In his individual and fiduciary capacity, Mayo E. Collier is a citizen and resident of the State of North Carolina.

While contending that Mayo E. Collier, Administrator, is the proper party plaintiff, and that therefore diversity of citizenship exists, plaintiffs urge that even if Mayo E. Collier, the North Carolina administrator, is prohibited by law from bringing this action under the North Carolina death by wrongful act statute¹, jurisdiction properly lies in this court to entertain the action by the Virginia administrator against the Virginia defendants under the "case arising" concept of 28 U.S.C. §§ 1331, 1337.

We have for consideration a motion to dismiss for lack of jurisdiction. Technically, jurisdiction may exist as to the claim alleged by the North Carolina plaintiff, but treating defendants' motion as one for summary judgment under Rule 56, F.R.Civ.P., 28 U.S.C., the action must be dismissed.

There is no difficulty in disposing of the action as instituted by the North Carolina administrator². In Holt v. Middlebrook, 4 Cir., 214 F.2d 187, 52 A.L.R.2d 1043, and Grady v. Irvine, 4 Cir., 254 F.2d 224, it was held that a non-resident personal representative who was not qualified in Virginia under § 26-59, Code of Virginia, 1950, could not maintain an action in a federal district court sitting in Virginia, under the wrongful death act of that state. While the instant case does not involve Virginia's wrongful death act, § 26-59 precludes any "act" by a foreign personal representative. Under the law of North Carolina (Gen.Stat. § 28-173) the personal representative is the only party having the right to sue. This effectively disposes of the right of Mayo E. Collier, Administrator, to maintain his action; all of which is disclosed from the face of the amended complaint. Even if the plaintiffs were co-administrators qualified in Virginia, there would be no right to maintain the action under any theory of diversity of citizenship.

The remaining question is not so readily determined. Eliminating the foreign personal representative, we have no diversity, but plaintiff contends (1) that the alleged violations of the stated federal statutes make it a "case arising" under the laws of the United States³, and (2) that the federal supremacy over the air is analogous to federal supremacy over navigable waters so that the case might be said to "arise" under the Constitution of the United States, Article I, § 8, cl. 3 (Commerce Clause).

In the recent case of Romero v. International Terminal Operating Co., 79 S.Ct. 468, 499, the Supreme Court discussed at length the jurisdictional questions under 28 U.S.C. § 1331, as the same applies to maritime matters instituted on the law side of the federal court. In attempting to analyze the majority and minority opinions, consisting of 61 pages, this court concludes that, in effect, the majority decided that "an action rooted in federal law can be brought on the law side of a federal court only if the diversity jurisdiction * * * can be invoked" as applied to maritime actions.

Applying this reasoning to the present complaint, plaintiff's case must fail. Even the dissent in Romero states:

"It is, finally, true that this Court has adhered to a policy of construing jurisdictional statutes narrowly. Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248; Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951. In regard to the grant of federal-question jurisdiction to the District Courts, this Court has insisted that a claim created under federal law be a necessary part of the plaintiff's case, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126, and that this claim be truly federal in nature, Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70."

Aside from Romero, the greater weight of authority supports the view as advanced by defendants. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Moore v. Chesapeake & O. Ry. Co., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755; Jacobson v. New York, N. H. & H. R. Co., 1 Cir., 206 F.2d 153, affirmed per curiam, 347 U.S. 909, 74 S.Ct. 474, 98 L.Ed. 1067; Andersen v. Bingham & G. Ry. Co., 10 Cir., 169 F.2d 328, 14 A.L.R.2d 987; Turner v. Wilson Line of Mass., Inc., 1 Cir., 242 F.2d 414; Boncek v. Pennsylvania R. Co., D.C.N.J., 105 F.Supp. 700; Isaac Kubie Co. v. Lehigh Valley R. Co., D.C., 261 F. 806; Bullock v. United States, D.C.N.J., 72 F. Supp. 445; Gilvary v. Cuyahoga Valley Ry. Co., 292 U.S. 57, 54 S.Ct. 573, 78 L. Ed. 1123.

The minority view is expressed in Neiswonger v. Goodyear Tire & Rubber Co., D.C.Ohio, 35 F.2d 761; and, to a limited extent, in Fitzgerald v. Pan American World Airways, 2 Cir., 229 F. 2d 499; Roosevelt Field, Inc. v. Town of North Hempstead, D.C.E.D.N.Y., 84 F.Supp. 456; D.C., 88 F.Supp. 177, 181; Laughlin v. Riddle Aviation Co., 5 Cir., 205 F.2d 948; Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691, 694; Odell v. Humble Oil & Refining Co., 10 Cir., 201 F.2d 123; Kardon v. National Gypsum Co., D.C., 69 F.Supp. 512; Restatement, Torts, ...