Odlivak v. Elliott

• Decision Date: 02 February 1949
• Docket Number: Civil Action No. 1069.
• Citation: 82 F. Supp. 607
• Parties: ODLIVAK v. ELLIOTT et al.
• Court: U.S. District Court — District of Delaware

82 F. Supp. 607

ODLIVAK v. ELLIOTT et al.

Civil Action No. 1069.

United States District Court D. Delaware.

February 2, 1949.

Clement C. Wood, of Hering, Morris, James & Hitchens, all of Wilmington, Del., for plaintiff.

William Poole and John P. Sinclair, of Southerland, Berl & Potter, all of Wilmington, Del., for defendants.

RODNEY, District Judge.

This is an action brought by the plaintiff as administrator ad prosequendum of Alexander Bank. The action is brought to recover damages for the alleged negligence of the defendants in an automobile accident resulting in the injury and death of Alexander Bank. The accident occurred on July 31, 1946, in the State of New Jersey and Alexander Bank is alleged to have been fatally injured in the accident and died upon the same day. The administrator ad prosequendum was appointed by the proper New Jersey officials and the present action is expressly brought pursuant to the New Jersey statute set out in extenso in the complaint and the material portions of which are quoted in the footnote.¹

The jurisdiction of this District Court for the District of Delaware arises from diversity of citizenship and the law of Delaware, including that of the conflict of laws, must be considered.² It is conceded and assumed that the law of the State of New Jersey controls in this proceeding.

Section 6 of the complaint sets out, "This action is brought, maintained and prosecuted for the use and benefit of Michael Odlivak, a citizen of the State of New York, as Administrator of the Estate of Anna Bank, also known as Anne Bank, who survived and was the widow of plaintiff's decedent and who suffered pecuniary injury by reason of plaintiff's decedent's death in the amount of Twenty-five Thousand Dollars ($25,000)."

It is admitted in this case that Alexander Bank, the decedent, left to survive him his widow, Anna Bank, and no children or descendants of any children, and no parents nor the adopting parents of any legally adopted child.

By interrogatories, and answers thereto, filed in this action certain things are shown. First, that the accident happened on July 31, 1946, at 9:20 p. m., and that Alexander Bank died as a result of the accident on the same day and hour. Second, that Alexander Bank left surviving him a widow, Anna Bank, who died some 9 hours and 25 minutes after the accident, to wit, on August 1, 1946, at 6:45 a. m. Third, that the weekly wage of Alexander Bank was $60 per week, almost all of which he gave to his wife. Fourth, that the source of the money he gave to his wife was his earnings and wages as above set out.

As heretofore stated the action is brought, maintained and prosecuted by the administrator ad prosequendum for the use of the administrator of the estate of Anna Bank. The defendant has moved to dismiss the complaint under Rule 12 because of lack of jurisdiction, and the present questions arise under that motion. The motion is based upon the following reasoning:

(1) That the beneficiary of any action for the death of Alexander Bank was his wife, Anna Bank;

(2) That Anna Bank survived her husband by 9 hours and 25 minutes;

(3) That the quantum of recovery in an action for wrongful death where the beneficiary dies before suit is brought or pending suit is limited to the pecuniary damages actually sustained by the beneficiary during her lifetime;

(4) That the answers to the interrogatories clearly indicate that the damages suffered by the beneficiary during her lifetime, being the 9 hours and 25 minutes she survived decedent, are less than the jurisdictional amount required in this suit; and

(5) That where the object is the recovery of an unliquidated claim and the law determines to a legal certainty that the matter in controversy involves less than the jurisdictional amount, the court is without jurisdiction and the suit must be dismissed.

It is conceded that this case is controlled by the law of New Jersey, where the accident and death occurred. The labors and difficulties of this court are thereby reduced for, under the law of New Jersey, certain things seem abundantly clear. In Cibulla v. Pennsylvania-Reading Seashore Lines, 50 A.2d 461, 25 N.J.Misc. 98, it was determined that the rights of persons who are entitled to recover for wrongful death are fixed as of the date of deceased's death, and such class can neither be enlarged, nor any member of the class be excluded from participation by reason of his own death subsequent to that of the person for whose death the action was brought. The widow having survived Alexander Bank, her right as sole beneficiary under the New Jersey statute is clearly fixed.

It is equally clear that the rights accruing under the New Jersey statute to Anna Bank as widow of Alexander Bank did not abate upon her own death prior to compensation therefor, but survived for the benefit of her estate. This was the precise holding of the Court of Errors and Appeals of New Jersey in Cooper v. Shore Electric Company, 63 N.J.L. 558, 44 A. 633, 636.

The particular matter of interest under the present circumstances is the quantum of damages to which the Estate of Anna Bank can be entitled. The defendant contends that damages can only be assessed for that portion of the lifetime of Anna Bank during which she survived the decedent Alexander Bank. Since that period was only some nine hours, the claim of the Estate of Anna Bank must be quite limited in extent.

Cooper v. Shore Electric Company, supra, was a case brought by an administrator of a decedent for the benefit of the father of the decedent. Pending the suit the father died and the court said, "The death of the beneficiary pending suit will have a controlling influence over the quantum of recovery. The personal injury sustained would be limited in duration and extent to his lifetime."

The cited case and the contention of the defendant seem in accord with both reason and authority. The general purpose of most statutes giving a right of action for wrongful death is to compensate the designated beneficiary for the pecuniary loss caused by the destruction of the life of a person upon whom the beneficiary depended in a pecuniary way or from whom the beneficiary received or had reason to receive some pecuniary benefit or advantage. So the New Jersey statute (footnote 1) authorizes the jury to assess damages "with reference to the pecuniary injuries resulting from such death." The courts of New Jersey have held that, under the pertinent statute, the plaintiff was entitled to recover nothing but the pecuniary loss sustained by the person for whose benefit the action was brought. May v. West Jersey & S. R. Co., 62 N.J.L. 67, 42 A. 165, and cases cited.³

The action then being purely compensatory for Anna Bank, the Estate of Anna Bank can recover no more than the pecuniary loss which Anna Bank sustained or the pecuniary benefit which Anna Bank could have enjoyed. She could have sustained the loss or enjoyed the benefit solely during her life and the cessation of her life must, therefore, mark the limit of time for computing compensation for which she was the beneficiary. The authorities in other jurisdictions where the question has been considered are in entire accord. No case has been found to the contrary where the death of the sole beneficiary occurred before ascertainment of damages. Sider v. General Electric Co., 238 N.Y. 64, 143 N.E. 792, 34 A.L.R. 158; Pitkin v. New York Central & H. R. R. Co., 94 App. Div. 31, 87 N.Y.S. 906; City of Shawnee v. Cheek, 41 Okl. 227, 252, 137 P. 724, 51 L.R.A.,N.S., 672, Ann.Cas.1915C, 290; Van Beeck v. Sabine Towing Co., 300 U.S. 342, 347, 57 S.Ct. 452, 81 L.Ed. 685; The City of Rome, D.C., S.D.N.Y., 48 F. 2d 333, 341; Dostie v. Lewiston Crushed Stone Co., 136 Me. 284, 8 A.2d 393; Sutherland on Damages, 4th Ed., Vol. 5, Sec. 1260.⁴

The defendant contends that since Anna Bank only survived Alexander Bank for some nine hours, the compensatory damages which could be granted in this case must, to a legal certainty, be far less than the jurisdictional amount of $3000 here necessary. The test is not so much the actual amount of the recovery that might be had but whether, when the suit was brought, the plaintiff may have been reasonably entitled to recover an amount in excess of the jurisdictional requirement. Many cases have considered the principles governing the dismissal of actions for failure to involve the amount required to confer jurisdiction on a district court. Distinction has been made between a case originally instituted in the federal court and cases removed to a federal court from a state court.⁵ The present case was originally brought in this court.

The holding of all the cases is epitomized in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 290, 58 S.Ct. 586, 590, 82 L.Ed. 845, where it is said:

"The intent of Congress drastically to restrict federal jurisdiction in controversies between citizens of different states has always been rigorously enforced by the courts. The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed or if,...