Nichols v. Marshall

• Decision Date: 08 February 1974
• Docket Number: No. 73-1423.,73-1423.
• Citation: 491 F.2d 177
• Parties: Joan NICHOLS, Surviving Wife and Next of Kin of Raymond L. Nichols, Deceased, Plaintiff-Appellee, v. Herbert A. MARSHALL, Administrator of the Estate of Frank W. Frombaugh, Deceased, Defendant-Appellant, and Allstate Insurance Company, a corporation, Garnishee-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

491 F.2d 177 (1974)

Joan NICHOLS, Surviving Wife and Next of Kin of Raymond L. Nichols, Deceased, Plaintiff-Appellee, v. Herbert A. MARSHALL, Administrator of the Estate of Frank W. Frombaugh, Deceased, Defendant-Appellant, and Allstate Insurance Company, a corporation, Garnishee-Appellant.

No. 73-1423.

United States Court of Appeals, Tenth Circuit.

Submitted November 14, 1973.

Decided February 8, 1974.

John E. Shamberg, Kansas City, Kan. (Charles S. Schnider, Lynn R. Johnson, Kansas City, Kan. and Clearly, Krigel, Nee & Teasdale, Kansas City, Mo., on the brief), for plaintiff-appellee.

Frank Saunders, Jr., of Wallace, Saunders, Austin, Allen, Brown & Enochs, Overland Park, Kan., for defendant-appellant and garnishee-appellant.

Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Joan Nichols, the surviving wife of Raymond L. Nichols, brought a wrongful death action against Herbert A. Marshall, the administrator of the estate of Frank W. Frombaugh, in the United States District Court for the District of Kansas. Frombaugh, Raymond Nichols and the latter's mother-in-law were all killed as the result of an automobile collision of tragic proportions on the Kansas Turnpike. Jurisdiction was based on diversity, Joan Nichols, as well as her deceased husband at the time of his death, being a citizen and resident of Missouri and Frank Frombaugh at the time of his death having been a citizen and resident of Shawnee County in the state of Kansas. Trial by jury resulted in the entry of a judgment in favor of Joan Nichols and against Marshall, the administrator, in the sum of $37,550.43. No appeal from that judgment was taken.

Thereafter, Joan Nichols instituted garnishment proceedings against Allstate Insurance Company, said company having issued an automobile liability insurance policy to Frank Frombaugh which was in force and effect as of the date of the accident here in question. Allstate was served with a garnishee summons, and in due time filed its answer. In its answer, Allstate admitted the existence of a policy of insurance having policy limits of $100,000 for each person injured and $300,000 for all injuries sustained in any one accident in which its insured, Frank Frombaugh, was involved. However, it was the basic position of Allstate, as set forth in its garnishee answer, that the insurance policy and any proceeds collectible thereunder were a part of the probate proceedings then pending in the probate court of Shawnee County in Kansas and not subject to garnishment in a federal district court proceeding.

In this general regard, Allstate further alleged in its answer that the probate court of Shawnee County not having ordered Marshall to satisfy the judgment entered in the wrongful death action in the federal district court, the latter was without jurisdiction over the subject matter, i. e., the proceeds obtainable under the insurance policy, and was without jurisdiction to enter a garnishee judgment against Allstate. Allstate suggested, alternatively, that the garnishment proceeding in the federal court be stayed until such time as the probate proceedings were concluded. The federal district court declined to stay the garnishment proceedings and proceeded to hear the matter on its merits. Such hearing resulted in a judgment in favor of Joan Nichols and against Allstate in a total amount of $39,094.15. Allstate now appeals, with Marshall, the administrator, being also designated as an appellant. We affirm. Some background material must be developed if the issue here involved is to be viewed in context.

This case arises out of an accident occurring on the Kansas Turnpike on August 10, 1969, wherein Frank Frombaugh was the driver of one vehicle and the Nichols family was riding in the other vehicle. Frombaugh, a citizen and resident of Shawnee County, in Kansas, was killed in the accident. Raymond Nichols was also killed as a result of the collision, as was a Mrs. Elva L. Brockman, the mother of Joan Nichols, who was also an occupant of the Nichols vehicle. Joan Nichols herself suffered severe personal injuries. The two Nichols children were also in the car, but they somehow escaped serious injury. The Nichols family were citizens and residents of Missouri, though Mrs. Brockman, Joan's mother, was a citizen and resident of Kansas.

On November 26, 1969, the attorneys for the Nichols family petitioned the probate court of Shawnee County, Kansas, to open an estate for Frank Frombaugh, and to appoint an administrator. In that petition, Joan Nichols, as the petitioner, alleged that she was a creditor of the estate by virtue of her claim for personal injuries and damages arising out of the automobile accident of August 10, 1969. An affidavit of counsel filed in support of the petition stated that the only known asset of the estate was the liability insurance policy issued Frombaugh by Allstate. On January 21, 1970, the probate court of Shawnee County ordered an estate opened and appointed one Herbert Marshall as administrator.

Claims were filed in the probate proceedings for the wrongful death and the survival action of Mrs. Elva Brockman, which claims, pursuant to Kansas probate practice, were transferred to the state district court of Shawnee County, in Kansas, for trial. These claims were ultimately settled by representatives of Allstate for $38,063.00. This settlement, incidentally, we are advised, was effected while the claims were pending in the state district court without resort to the probate proceedings in Shawnee County. Such may perhaps be illustrative of the correct Kansas procedure in a situation of the type with which we are here concerned.

On February 20, 1970, the following three separate actions were instituted in the United States District Court for the District of Kansas: (1) the survival action of Raymond Nichols (#3102); (2) the wrongful death action brought by Joan Nichols (#3103), which is the action in which the present garnishment proceeding was later brought; and (3) the personal injury action of Joan Nichols (#3104). All actions named Marshall, as administrator, as the defendant. These three cases were consolidated for trial. Upon, trial, liability was admitted, and the only issue submitted to the jury was the question of damages. The jury returned the following dollar verdicts: (1) $78,095.00 in the survival action (#3102); (2) $37,550.43 in the wrongful death action (#3103); and (3) $154,375.15 in the personal injury action (#3104), and appropriate judgments were entered thereon. The judgments entered in the survival action (#3102) and the personal injury action (#3104) were appealed and affirmed by us in Nichols v. Marshall, 486 F.2d 791 (10th Cir. 1973). The issues in that consolidated appeal related to the damages fixed by the jury, and do not relate to the precise issue posed in the present appeal. As indicated, the judgment entered in the wrongful death action (#3103) was not appealed.

Before discussing the garnishment proceeding brought in the wrongful death action (#3103), which is the subject matter of the present controversy, we would first review the status of the proceedings in the probate court of Shawnee County, in Kansas. As above mentioned, Joan Nichols filed a petition to open an estate for Frank Frombaugh on November 26, 1969, and an estate was thus opened on January 21, 1970. On October 23, 1970, the time for filing a claim against the estate of Frank Frombaugh in the probate court of Shawnee County, in Kansas, expired. K.S.A. 59-2239. On December 2, 1970, counsel for the plaintiffs in the three actions then pending in the federal district court filed in the probate court a "Petition for Allowance of Amended Claim," seeking to relate the amended claim, which was based on the several claims asserted in the three pending federal court actions, back to the date of the original petition to open an estate, namely, November 26, 1969. Over objection, this petition for allowance of an amended claim was granted. On appeal to the district court for Shawnee County, the ruling of the probate court was affirmed. A further appeal of this matter to the Kansas Supreme Court was later dismissed by that court. There is disagreement between counsel as to whether the dismissal by the Kansas Supreme Court was on the merits, or because the ruling appealed from was only interlocutory. In view of our approach to this case, the grounds upon which the Kansas Supreme Court acted is not crucial.

It was in this general setting that Joan Nichols, in her wrongful death action, which had not been appealed, instituted garnishment proceedings, naming Allstate as the garnishee-defendant. As mentioned above, Allstate, by answer, contended that the insurance policy and any proceeds collectible thereunder were not subject to garnishment but were under the aegis of the probate court of Shawnee County, and that because the probate court had not ordered payment of the judgment entered in the wrongful death case, the federal district court was powerless to proceed to satisfy its judgment through garnishment and in any event should await action in the Kansas probate court. The trial court disagreed with this contention, and so do we.

As a starting point, it is agreed that the federal district court did have jurisdiction to entertain the wrongful death action brought by Joan Nichols against Marshall, the administrator of Frombaugh's estate. The general rule is a federal district court in a diversity case has the same jurisdiction as does the state court of general jurisdiction in the state where the federal district court is sitting. Holt v. King, 250 F.2d 671 (10th Cir. 1957), and Erwin v. Barrow, 217 F.2d 522 (10th Cir. 1954). We are advised that the present probate practice in Kansas permits the probate court, on request, to transfer to the state district court a disputed claim in excess of $500 for an original trial of the matter in the...