Parrott v. Whisler

• Citation: 313 F.2d 245
• Decision Date: 11 February 1963
• Docket Number: No. 14995-14997.,14995-14997.
• Parties: Chester A. PARROTT, Plaintiff-Appellee, v. Max P. WHISLER, Administrator of the Estate of Marko E. Whisler, deceased, Defendant-Appellant. Thorald JOHNSON, Plaintiff-Appellee, v. Max P. WHISLER, Administrator of the Estate of Marko E. Whisler, deceased, Defendant-Appellant. James Ancil PARROTT, Plaintiff-Appellee, v. Max P. WHISLER, Administrator of the Estate of Marko E. Whisler, deceased, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

313 F.2d 245 (1963)

Chester A. PARROTT, Plaintiff-Appellee, v. Max P. WHISLER, Administrator of the Estate of Marko E. Whisler, deceased, Defendant-Appellant.

Thorald JOHNSON, Plaintiff-Appellee, v. Max P. WHISLER, Administrator of the Estate of Marko E. Whisler, deceased, Defendant-Appellant.

James Ancil PARROTT, Plaintiff-Appellee, v. Max P. WHISLER, Administrator of the Estate of Marko E. Whisler, deceased, Defendant-Appellant.

Nos. 14995-14997.

United States Court of Appeals Sixth Circuit.

February 11, 1963.

Robert L. Milby, London, Ky. (Hamm, Taylor & Milby, London, Ky., on brief), for appellant.

Lohren F. Martin, Jr., Corbin, Ky. (Sutton & Martin, Corbin, Ky., on brief), for appellees.

Before McALLISTER, WEICK and O'SULLIVAN, Circuit Judges.

WEICK, Circuit Judge.

This litigation arose out of a collision occurring in Rockcastle County, Kentucky between a motor vehicle owned and operated by the decedent, Marko E. Whisler and another motor vehicle owned and operated by plaintiff, Chester A. Parrott, in which plaintiffs, Thorald Johnson and James Ancil Parrott, were riding as passengers. All of the plaintiffs were residents of Kentucky. Each of them sustained personal injuries as a result of the collision. Mr. Whisler sustained injuries from which he subsequently died. Max P. Whisler was appointed administrator of the estate of Marko E. Whisler by the Probate Court of Lucas County, Ohio where the decedent resided at the time of his accident and death.

The complaints to recover damages for personal injuries sustained by the Kentucky residents were filed against the nonresident personal representative in the United States District Court for the Eastern District of Kentucky which was in the district where the accident took place. Jurisdiction was based on diversity of citizenship. Summons was issued and served on the representative in accordance with the provisions of Kentucky Revised Statute § 188.020.¹ The personal representative questioned the jurisdiction of the court by motions to dismiss and also in his answers to the complaints. The cases were consolidated for trial and plaintiffs recovered verdicts and judgments from which these appeals were taken. The sole questions raised here in the briefs were (1) lack of jurisdiction of the District Court over the personal representative and (2) failure to file claims with the personal representative within the time provided therefor by Ohio statutes. O.R.C. § 2117.06 and § 2117.07.

KRS § 188.020 was amended in 1954 to include the provision as to the "personal representative." Prior to the amendment the Court of Appeals of Kentucky had held that the statute did not authorize process against a nonresident personal representative of a decedent and that an action against a nonresident motorist upon his death could not be revived against his personal representative. Riggs v. Schneider's Executor, 279 Ky. 361, 130 S.W.2d 816. The obvious purpose of the amendment was to make the personal representative subject to process the same as provided in respect to the operator of the motor vehicle. The Kentucky law was clear that without the enabling statute a nonresident personal representative could neither sue nor be sued in the Kentucky court. Curle v. Moor, 31 Ky. (1 Dana) 445 (1833); Baker v. Smith, 60 Ky. (3 Metc.) 264; McClellan's Adm'r. v. Troendle, 99 S.W. 329 (Ky., 1907); Ballard v. United Distillers, 28 F.Supp. 633 (W.D.Ky., 1939); Vassill's Adm'r. v. Scarsella, 292 Ky. 153, 166 S.W.2d 64 (1942); Seymour v. Johnson, 235 F.2d 181 (C.A.6, 1956).

The question here is whether the 1954 amendment to KRS § 188.020 was effective to accomplish the intended purpose. We think it was. Appellant claims that it was not. He asserts that the Kentucky statute relates only to service of process and does not confer jurisdiction over the nonresident personal representative who can only be sued in the state of his appointment. He further claims that the agency of the Secretary of State terminated upon the death of the decedent; that since a nonresident personal representative could not sue in the Kentucky courts and an ancillary administrator appointed in Kentucky could not bring action in the federal courts for lack of diversity of citizenship, it would be grossly unfair to permit an action in Kentucky courts against the nonresident personal representative.

These and other questions relating to similar statutes have been litigated in the courts and while there is some authority to the contrary,² the better reasoned cases and the weight of authority support jurisdiction against the nonresident personal representative.³

This result would seem to follow from the decision of the Supreme Court in Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, which upheld the constitutionality of a statute providing for service on a nonresident motorist which was attacked on the ground that it violated the due process clause.

The rationale of Hess was that the nonresident motorist gave his consent to the appointment of the agent upon whom process could be served. We see no good reason why the motorist could not also bind his personal...