Rodgers v. Irvine

• Decision Date: 06 November 1957
• Docket Number: Civ. A. No. 468.
• Parties: Margarette W. RODGERS v. Richard Eugene IRVINE.
• Court: U.S. District Court — Western District of Virginia

161 F. Supp. 784

Margarette W. RODGERS v. Richard Eugene IRVINE.

Civ. A. No. 468.

United States District Court W. D. Virginia, at Harrisonburg.

November 6, 1957.

Allen, Allen, Allen & Allen, Richmond, Va., for plaintiff.

Wayt B. Timberlake, Jr., Staunton, Va., for defendant.

PAUL, Chief Judge.

On January 30, 1957, Margarette W. Rodgers instituted in this court an action for damages against Richard Eugene Irvine charging that she, while a pedestrian on a street in the city of Waynesboro, Virginia, had been injured as a result of being struck by an automobile which the defendant was operating in a negligent manner on said street. The complaint alleged that the plaintiff was a citizen of Maryland and that defendant was a citizen of Virginia; it also alleged damages in excess of the jurisdictional amount. This court therefore had jurisdiction of the action.

While the action has been pending in this court and before any trial was had, the plaintiff, Margarette W. Rodgers died. As a result of this there has now been filed a motion by Ellis B. Grady, Jr., administrator c.t.a. of Margarette W. Rodgers, alleging that he has duly qualified as such administrator in the Corporation Court of the City of Waynesboro and asking that he be substituted as plaintiff in the action in place of Margarette W. Rodgers. The administrator further represents that the death of Margarette W. Rodgers resulted from the injuries sustained in the accident described in the original complaint and moves that the complaint be amended to conform to an action under Sections 8-633 and 8-634 of the Code of Virginia (the Death by Wrongful Act statute) and that the case be proceeded with as if the action had been brought under such sections.

There is no question that the common law rule that a right of action for injury to the person died with the death of the injured person is no longer the law in Virginia. Indeed it is clearly provided otherwise by statute, Code of Virginia 8-640, which will be discussed hereinafter. A question which does arise, however, and which the court has suggested on its own motion, is whether jurisdiction of the action in this court will not be lost by granting the motion of the administrator c.t.a. for substitution as plaintiff for the reason that there would then be no diversity of citizenship between the parties. The views of counsel on this question have been invited and have been given and considered.

It is generally recognized that letters testamentary or of administration have no force or effect beyond the territorial limits of the state by whose authority they are granted. Out of this evolves the rule which forbids an executor or administrator who has qualified as such in one state from bringing suit in another state to recover assets of the estate except with the permission of and upon the terms prescribed by the latter state.

For many years the State of Virginia has by statutory enactment forbidden that a non-resident be allowed to qualify in this state as personal representative of any decedent unless there be appointed to serve with such non-resident a person resident in the state. Prior to 1950 the statute, so far as pertinent here, provided that,

"No person not a resident of this State * * * shall be appointed or allowed to qualify as personal representative of any decedent * * * unless there be also appointed to serve with the non-resident personal representative * * * a person resident in this State * * *."

Va. Code, Section 26-59.

In the above form and prior to an amendment in 1950 this statute had been held not to forbid a non-resident personal representative from maintaining an action for wrongful death in the federal court in this state as sole plaintiff. The reasoning being that the statute was intended to apply to personal representatives of the general estate of a decedent and was for the protection of local persons, such as creditors, who might have an interest in seeing that the assets of the estate were not removed from the state or otherwise mishandled by a non-resident personal representative. It was pointed out that no such considerations existed where the personal representative in an action for death by wrongful act was in effect a trustee who sued for the benefit of designated beneficiaries and where any recovery was free from the claims of creditors. See the opinion of Judge Barksdale of this district in LaMay v. Maddox, D.C., 68 F.Supp. 25, and cases there cited. See also Pearson v. Norfolk & W. Railway Co., D.C., 286 F. 429, for the opinion of Judge McDowell of this district. See also Reed v. Shilcutt, D.C., 119 F.Supp. 652, opinion by Judge Pollard of the Eastern District of Virginia. The views expressed in these cases, based on the difference in the status and power of a personal representative of the general estate of a decedent as distinguished from the restricted status and duty of a personal representative suing under a death by wrongful act statute, has found support elsewhere, McCarty v. New York etc. Co., C.C., 62 F. 437; Wilson v. Tootle, C.C., 55 F. 211. So far as appears, however, there is no decision of the Virginia courts on the question.

However in 1950 Section 26-59 of the Code of Virginia was amended so that, so far as pertinent here, it now provides as follows:

"No person not a resident of this State * * * shall be appointed or allowed to qualify or act as personal representative * * * of any decedent * * * unless there be also appointed to serve with the non-resident personal representative * * * a person resident in this State * * *." (Italics supplied to indicate the amendment of 1950.)

In the case of Holt v. Middlebrook, 214 F.2d 187, 52 A.L.R.2d 1043, (decided July 1954) the Court of Appeals of this (4th) circuit had occasion to pass upon the amended statute as affecting the right of a non-resident personal representative who had not qualified or been appointed as such in Virginia to maintain an action in a federal court in Virginia under the Virginia statute of Death by Wrongful Act. In affirming a judgment of the District Court for the Eastern District of Virginia the Court of Appeals held that such an action could not be maintained. It based this conclusion primarily upon the effect of the 1950 amendment to Section 26-59. After adverting to the decisions in Pearson v. Norfolk & W. Ry., LaMay v. Maddox, and Reed v. Shilcutt, hereinbefore referred to, Judge Dobie speaking for the Court of Appeals says, 214 F.2d at page 190:

"Whatever may have been the law prior to the Amendment of 1950 to the Virginia Code, we think the addition by that amendment of the words `or act' in the restrictive statute requires us to affirm the judgment below and to hold that the instant actions must be dismissed."

Judge Dobie also pointed out that the court had previously held in the case of Rybolt v. Jarrett, 4 Cir., 112 F.2d 642, that a West Virginia statute providing that a non-resident should "not be appointed or act" as executor or administrator prevented a non-resident administrator from maintaining an action in the federal court in West Virginia under the Death by Wrongful Act statute of that state which, like the Virginia statute, requires that such actions be brought by the personal representative of the deceased.

The decision in Holt v. Middlebrook is to the effect that a non-resident personal representative as sole plaintiff cannot maintain an action for death by wrongful act in a federal court in Virginia against a resident of Virginia. It would seem evident that the effect of the decision is to divest the federal courts in this state of jurisdiction in any action for death by wrongful act against a resident of Virginia. In such cases the only possible ground for federal jurisdiction would be diversity of citizenship. But even though the deceased be a non-resident the action can be maintained only by some citizen of Virginia who has qualified as sole personal representative or by such Virginia citizen acting as co-fiduciary with a non-resident as required by Sect. 26-59. In either case there would be a citizen of Virginia on each side of the controversy and the requirements of diversity jurisdiction would not be satisfied. It is well settled that for purposes of diversity of jurisdiction the citizenship of an executor or administrator is controlling, and not that of his decedent. Dobie on Federal Procedure, at page 193; Mecom v. Fitzsimmons etc., 284 U.S. 183, 186-187, 52 S.Ct. 84, 76 L.Ed. 233; And see Warner v. Maddox, D.C., 68 F.Supp. 27.

In the instant case the motion is to substitute as plaintiff an administrator c.t.a. in the person of Ellis B. Grady, Jr., who has qualified as such in a Virginia court. While it is not so stated it is clear that Mr. Grady is a resident of Virginia; otherwise he would not have been allowed to qualify as administrator. If the substitution of this administrator c.t.a. as plaintiff were permitted we would then have a Virginia citizen suing a Virginia citizen in an action in which jurisdiction in this court was originally sought on the ground of diversity of citizenship.

Sections 8-633 and 8-634 of the Virginia Code establish the right of action for death by wrongful act and prescribe the manner and time for the exercise of such right. A further section of the Death by Wrongful Act statute and upon which the present motion for substitution of plai...