Rybolt v. Jarrett, 4605.

• Decision Date: 10 June 1940
• Docket Number: No. 4605.,4605.
• Citation: 112 F.2d 642
• Parties: RYBOLT v. JARRETT et al.
• Court: U.S. Court of Appeals — Fourth Circuit

112 F.2d 642 (1940)

RYBOLT v. JARRETT et al.

No. 4605.

Circuit Court of Appeals, Fourth Circuit.

June 10, 1940.

H. D. Rollins, of Charleston, W. Va., for appellant.

John N. Charnock and Mose E. Boiarsky, both of Charleston, W. Va. (Sam D. Lopinsky and Frances Lopinsky, both of Charleston, W. Va., on the brief), for appellees.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

DOBIE, Circuit Judge.

This appeal presents for our determination only a single question. The plaintiff, in his complaint filed in the United States District Court for the Southern District of West Virginia, brought an action under the West Virginia Statute of Death by Wrongful Act, alleging in his complaint that he was a citizen of the State of Indiana; that he had been duly appointed by the Circuit Court of Howard County, Indiana, administrator of the personal estate of Maxine Collier; that she was at the time of her death a citizen of Indiana; that on March 25, 1939, she died intestate in West Virginia as the result of the wrongful acts committed in West Virginia by the defendants, who were citizens of West Virginia, and that her sole distributee was a minor son, who is also a citizen of the State of Indiana. The trial judge dismissed the action on the ground that such an action could not be maintained in West Virginia by a personal representative appointed in another state. So we are here concerned solely with the correctness of this ruling.

At the outset, it might be remarked that there is here no question of the jurisdiction of the federal court as a federal court. Further, the problem is one to be determined entirely by the interpretation of the statutes and policy of the State of West Virginia. Accordingly, had the highest court of West Virginia spoken clearly on this question, we should unhesitatingly follow its decision. But this precise problem appears never to have been decided by that court. If any inference is to be drawn from this, since the West Virginia Statute of Death by Wrongful Act was enacted more than seventy years ago, we believe that the proper inference would be a general feeling among members of the Bar of West Virginia that such a suit could not be maintained in a West Virginia Court.

The West Virginia Statute of Death by Wrongful Act, which is necessarily controlling here, reads as follows:

"Action for Wrongful Death. — Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. No action, however, shall be maintained by the personal representative of one who, not an infant, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death. Any right of action which may hereafter accrue by reason of such injury done to the person of another shall survive the death of the wrong-doer, and may be enforced against the executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his personal representative after his death, whether or not the death of the wrong-doer occurred before or after the death of the injured party."

"Party Plaintiff in Such Action; Damages; Distribution; Limitation. — Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars, and the amount so recovered shall not be subject to any debts or liabilities of the deceased. Every such action shall be commenced within two years after the death of such deceased person." West Virginia Code, Chapter 55, Article 7, and §§ 5 and 6.

In this connection, Professor Raleigh Minor, in his scholarly work, Conflict of Laws (p. 238) has stated: "The general rule is that the law of the place where the tort resulting in death is committed (lex loci delicti) will determine whether an action can be brought therefor and the party who is to bring it, as well as the time within which the suit is to be brought, the limit of damages, and the persons for whose benefit the damages are to be given. These rights are the creatures of statute, and the lex loci delicti must be strictly followed."

The general question of whether under a statute of death by wrongful act which designates the personal representative as the proper person to bring the suit, the term "personal representative" is broad enough to include a personal representative appointed in a state other than that in which suit is brought, or whether this term should be limited to a personal representative appointed by the state where the suit is brought, or such a representative appointed by the state where the death was caused, has been variously decided in many of the courts of last resort in states of the United States. Naturally, difference in the language of the statutes and the presence or absence of other qualifying statutes may account for some differences in the opinions. Discussions of this problem will be found in the authorities cited below.

In favor of the view taken by the lower court in this case is, of course, the familiar common-law principle that a personal representative can sue only in the state of his appointment. Thus in the American Law Institute's Restatement on the Conflict of Laws, the black letter of § 507 reads: "In the absence of a statute permitting it, a foreign administrator cannot sue to recover a claim belonging to a decedent." However, as is indicated in the authorities below, a foreign representative is frequently permitted to sue by comity when the interest of residents of the state of suit would not thereby be adversely affected.

Again, it is pointed out that an administrator suing under a typical statute of death by wrongful act is acting in a peculiar and distinctive role. He sues, it is said, not really as a representative of the deceased, to recover assets to be applied, as is ordinarily the case, to the payment of the debts of the deceased. Under the West Virginia Statute of Death by Wrongful Act, the amount recovered is not subject to the debts of the deceased, but has to be turned over to designated beneficiaries. Many of the cases have pointed out that the so-called personal representative under such a statute sues not really as a personal representative but rather as a statutory trustee or quasi-trustee for the beneficiaries. It might also be noted that modern courts have been so liberal in applying to foreign personal representatives the rule of comity indicated above that, in actual practice, permission to a foreign personal representative to sue has become almost the rule rather than the exception.

Some of the rules of statutory interpretation are not very helpful in this connection. Thus, it has frequently been said that a statute in derogation of the common law, which creates a right non-existent at common law, should be strictly construed. On the other hand, it has often been pointed out that remedial statutes should be liberally construed. A statute of death by wrongful act is a statute creating a right that did not exist at common law; yet it is equally a remedial statute which rights a very ancient and very cruel wrong. Accordingly, we find in the cases that the courts have approached the problem of interpreting these statutes from many angles and from varied viewpoints.

We believe that the doctrine laid down by the liberal courts is the better one. It is very easy to point out many unfortunate results that would follow from a strict interpretation of a statute of death by wrongful act which holds that, when the right to sue is given by the statute to the personal representative, this means solely a personal representative appointed by the court of the state in which suit is brought. This is admirably brought out in a note in 31 Harvard Law Review 1161; also in the leading case of Ghilain v. Couture, 84 N.H. 48, 146 A. 395, which is elaborately annotated in 65 A.L.R. at pages 563-573.

Accordingly, were the question an open one depending solely upon the interpretation of the West Virginia Statute of Death by Wrongful Act, we should be inclined to follow the modern liberal doctrine and to hold in the instant case that the action in question could be maintained in the United States District Court for the Southern District of West Virginia by an administrator duly appointed by a proper court of Indiana. But there is another West Virginia statute which we believe to be controlling, and which, we think, forces us to reach the opposite conclusion, the conclusion arrived at by the learned trial judge in the instant case below. We know that many cases can be found in this and other fields of the law in which judges have felt themselves justified in departing from the letter of a statute when this would accomplish a desirable result. We are familiar with the oft-quoted doctrine of the superiority of the spirit of a statute over its letter, and we are not insensible to the ancient maxim Qui haeret in litera haeret in cortice. But, when the legislature of a state seems to have spoken in quite clear language and, when by so doing, the legislature appears to have...