Mutual Life Ins. Co. of New York v. Painter

• Decision Date: 09 March 1915
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK et al. v. PAINTER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

220 F. 998

MUTUAL LIFE INS. CO. OF NEW YORK et al. v. PAINTER et al.

United States District Court, D. Maryland.

March 9, 1915

Barton Wilmer & Stewart and Randolph Barton, Jr., all of Baltimore Md., for plaintiffs.

Arthur L. Jackson, of Baltimore, Md., for defendants.

ROSE District Judge.

In his lifetime Edward O. Painter was the husband of one of the defendants and the father of another. At the time of his death his life was insured for upwards of $1,000,000. The circumstances of his death were somewhat peculiar. There were other facts which seem to the insurance companies suspicious. The coroner removed from his body the principal vital organs and sent them to a Baltimore chemist. Some litigation over these remains followed in the state courts. Painter v U.S. Fidelity & Guaranty Co., 123 Md. 301, 91 A. 158. By a writ of error the Painters carried the case to the Supreme Court of the United States, where it is now pending.

Early in this litigation the remains were placed in the custody of the defendant Carson, the clerk of the circuit court of Baltimore city. The bill of complaint in the cause now at bar was originally filed in that court. It set up that a settlement was about to be reached between the parties to the preceding litigation, as a result of which the remains would be taken out of the custody of the clerk and would become inaccessible to the plaintiffs. It asked for a chemical and pathological examination under the order of the court and for an injunction forbidding the delivery of the remains to the Painters, or their removal from the jurisdiction of the court. The defendants attempted to remove the case here. The plaintiffs have moved to remand. They are New York corporations. Two of the defendants are citizens of Florida. The third is clerk of the circuit court of Baltimore city and a citizen of Maryland. The defendants say that he is a nominal party only. Even so, the plaintiffs are for jurisdictional purposes to be considered as citizens of New York and the substantial defendants of Florida. Such a case could not, against the objection of the defendants, have been entertained by the United States District Court for the District of Maryland, if it had been there originally brought. Judicial Code, Sec. 51. It could not, therefore, be here removed (Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264), unless both sides waived their right to object to such removal (In re Moore, 209 U.S. 490, 28 Sup.Ct. 706, 52 L.Ed. 904, 14 Ann.Cas. 1164). That, the plaintiffs have not done.

Judge Cochran, in Louisville & Nashville R. Co. v. Western Union Telegraph Co. (D.C.) 218 F. 91, held that the decision in the Wisner Case was inadvertently made, and that its authority has been now so shaken, in consequence of the repudiation by the Supreme Court of the principle upon which it was based, that it is no longer to be accepted as an expression of the present view of the court which made it. He thinks that that tribunal will welcome an opportunity to review what it there said. It has little chance...