Rowston v. Oglebay Norton Company, 35590.

• Decision Date: 26 January 1960
• Docket Number: No. 35590.,35590.
• Parties: Mary Genese ROWSTON, as Administratrix, etc., Plaintiff, v. OGLEBAY NORTON COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

180 F. Supp. 803

1960 AMC 1962

Mary Genese ROWSTON, as Administratrix, etc., Plaintiff, v. OGLEBAY NORTON COMPANY, Defendant.

No. 35590.

United States District Court N. D. Ohio, E. D.

January 26, 1960.

J. Harold Traverse, Cleveland, Ohio, and George J. Engelman, New York City, for plaintiff.

Robert Branand, Thomas O. Murphy, Johnson, Branand & Jaeger, Cleveland, Ohio, for defendant.

McNAMEE, District Judge.

This action is brought under the Jones Act, 46 U.S.C.A. § 688, against the Oglebay Norton Company, owner of the steamship O. S. McFarland, to recover damages for the alleged wrongful death of plaintiff's decedent, which occurred on February 16, 1958. The action is brought for the benefit of the decedent's three minor children aged 6, 7 and 9, respectively, who are the sole beneficiaries entitled to participate in any recovery. The complaint also alleges a claim for personal injuries sustained by the decedent and avers that the injuries and death were caused solely by the negligence of defendant. Proceeding under Rule 12(b) F.R.Civ.P., 28 U.S.C.A. defendant has moved to dismiss the complaint with prejudice as to plaintiff on the asserted grounds that plaintiff has failed to state a claim on which relief may be granted and that this Court is without jurisdiction of the subject matter. In effect, the motion constitutes an attack under Rule 17(b) on plaintiff's capacity to maintain the action. The motion is predicated upon the contention that plaintiff's appointment by the Probate Court of Cook County, Illinois is invalid because at the time of decedent's death he was not a resident of the state of Illinois or the owner of property in that state. In support of the motion, defendant filed affidavits of Walter H. Rowston, father of the decedent, and Thomas O. Murphy, one of the attorneys for defendant. Attached to the affidavits are certified copies of court records and copies of records of various employers of decedent. In opposition to the motion, plaintiff has filed her own affidavit together with copies of letters received by her. From the moving papers, the following facts appear:

Plaintiff and decedent were married in 1949. Three children, the beneficiaries herein named, were born of the marriage. In 1954 decedent deserted plaintiff. In 1956 plaintiff filed suit for divorce in the Circuit Court of Cook County, Illinois. Her attorney in that action filed an affidavit stating that the decedent's last known place of residence was "31 Clark Street, Pontiac, Michigan." The employment records of decedent for 1954-1955 and 1957-1958 disclose his residence to be stated as "31 Clark Street, Pontiac, Michigan." After the death of plaintiff's decedent, his father, Walter H. Rowston, who resides at the above address, was appointed administrator of his deceased son's estate by the Probate Court of Oakland County, Michigan, on April 27, 1959. Thereafter Walter H. Rowston employed his nephew, Philip Rowston, to act as his attorney. Plaintiff asseverates that she is supporting herself and her children by her earnings; that Walter Rowston, administrator, the paternal grandfather of her children, has made no inquiry as to their welfare and has made no contribution to their support; that she received no advice from either Walter Rowston or his attorney Philip Rowston as to the rights of the children in the cause of action for wrongful death; and that she received no information from either of them with reference to the facts or circumstances of her former husband's death. On August 26, 1959 plaintiff petitioned for and received letters of administration of the estate of the decedent from the Probate Court of Cook County, Illinois. In her petition for appointment as administratrix plaintiff stated that the decedent was a resident of Cook County, Illinois at the time of his death; that the sole asset of the estate was an action for wrongful death and that plaintiff having been appointed guardian of the estate of the three children intended to commence an action under Title 46 U.S.C.A. § 688 for the benefit of the children. In her affidavit plaintiff states that she "believes the decedent never changed his residence from Chicago, Illinois to any other place." She elucidates the reasons for such belief at length but it is unnecessary to restate such reasons here. While plaintiff contends that decedent was a resident of Cook County, Illinois at the time of his death, she opposes the motion on the further ground that defendant may not in this action collaterally attack her appointment as administratrix.

Discussion

It is a general rule that a decree of a probate court appointing an administrator may not be collaterally attacked in an action brought by him for wrongful death where no jurisdictional defect appears on the face of the proceedings. 16 Am.Jur., p. 187; Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904. This is also the rule in Illinois. Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, 148 N.E. 862, 41 A.L.R. 1345. The same rule was followed by the Sixth Circuit Court of Appeals in Harrison v. Love, 81 F.2d 115. In that case the decedent, an Ohio resident, was killed in an automobile accident in Ontario, Canada. The decedent's wife was appointed administratrix by the Probate Court in Ohio. Under the law of Michigan a foreign administratrix could not institute suit in that state. The Ohio administratrix, therefore, filed in Berrien County, Michigan, a petition for the appointment of a special administrator, in which she alleged:

"* * * that she is interested in said estate; that said deceased departed this life on the 10th day of August, 1932 * * * that said deceased left an estate within said County of Berrien, Michigan, to be administered, and that the estimated value thereof is as follows: a cause of action for wrongful death, $50.00 and upwards, as she is informed and verily believes."

The Court of Appeals held that the right of action for wrongful death constituted "assets" for distribution; that the requisite jurisdictional facts appeared in the petition and that the appointment of the special administrator was not subject to attack in the wrongful death action. Under Rule 17(b) plaintiff's capacity to sue must be determined by...