Silvious v. Helmick, 68-5-M.

• Decision Date: 04 October 1968
• Docket Number: No. 68-5-M.,68-5-M.
• Citation: Silvious v. Helmick, 291 F.Supp. 716 (N.D. W.Va. 1968)
• Parties: Sandra Smith SILVIOUS, Administratrix of the Estate of Ervin Edward Silvious, Deceased, and Hepner Brothers, Inc., a corporation, Plaintiffs, v. Melvin HELMICK, Defendant.
• Court: U.S. District Court — Northern District of West Virginia

291 F. Supp. 716

Sandra Smith SILVIOUS, Administratrix of the Estate of Ervin Edward Silvious, Deceased, and Hepner Brothers, Inc., a corporation, Plaintiffs, v. Melvin HELMICK, Defendant.

No. 68-5-M.

United States District Court N. D. West Virginia.

October 4, 1968.

Robert M. Steptoe, Avey & Steptoe, Martinsburg, W. Va., for plaintiffs.

Clarence E. Martin, Jr., Martinsburg, W. Va., for defendant.

MEMORANDUM

MAXWELL, Chief Judge.

Death resulted from the complained of automobile accident which occurred on March 17, 1967, in Hampshire County, West Virginia, and as the result of which Plaintiffs, deceased's Administratrix and employer, sue to recover for the wrongful death of deceased and for the employer's property damage.

Defendant's motion to dismiss alleges that the appointment of the Administratrix in this litigation, who is a resident of Virginia, was a collusive attempt to obtain diversity jurisdiction and violates Title 28, Section 1359, United States Code. Defendant also challenges the capacity of the Administratrix to sue by pointing out that by state statute a non-resident of West Virginia can not be appointed administratrix in West Virginia.

Plaintiff insists that her appointment is not collusive, in violation of Title 28, Section 1359, United States Code, and denies that the appointment is void.

Rule 17(a), Federal Rules of Civil Procedure, provides that the real party in interest must bring the suit and that an Administrator may sue in his own name. Designation of the real party in interest, however, depends upon the state substantive law.

West Virginia law allows a cause of action for wrongful death. Section 55-7-5, West Virginia Code (Michie 1966). The statute further provides that "Every such action shall be brought by and in the name of the personal representative of such deceased person * * *." Section 55-7-6, West Virginia Code (Michie 1966). This designates the personal representative as the real party in interest and allows only the personal representative to bring a wrongful death action.

With regard to bringing a wrongful death action, Section 55-7-6, West Virginia Code, now reads: "Every such action shall be brought by and in the name of the personal representative of such deceased person who has been duly appointed in this State, or in any other state, territory, or district of the United States, or in any foreign country * * *" (Michie Supp.1968). This amendment, it must be noted, does not apply in this action, as it expressly does "* * * not apply to actions brought for the death of any person occurring prior to the effective date hereof." The amendment was passed March 10, 1967, and did not take effect until 90 days thereafter. Legislature of West Virginia, Acts of 1967, Regular Session, Chapter 1. The accident occurred March 17, 1967, and deceased expired before the amendment took effect.

Defendant cites Section 44-5-3, West Virginia Code (Michie 1966), which provides that "No person not a resident of this State * * * shall be appointed or act as * * * administrator * *," to urge that Plaintiff here does not have the capacity to act as a West Virginia fiduciary since she is a resident of Virginia.

Plaintiff was appointed Administratrix by the County Court of Berkeley County, West Virginia. In making that appointment, the County Court must have determined Plaintiff had the capacity to act as Administratrix. For this Court to sustain the challenge to her capacity to act as Administratrix would be to collaterally attack such determination of that County Court. This cannot, and indeed should not, be done. The jurisdiction of the County Court is general, as applied to the appointment of administrators, and can only be attacked directly by appeal or proceedings in that County Court. Harrison v. Love, 81 F.2d 115 (6th Cir., 1936); Fickeisen v. Wheeling Electrical Co., 67 W.Va. 335, 67 S.E. 788, 27 L.R. A.,N.S., 893 (1910); Cicerello v. Chesapeake & O. Ry. Co., 65 W.Va. 439, 64 S.E. 621 (1909).¹

In Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28, the Court held that the appointment of a probate court cannot be collaterally attacked in a suit brought for an entirely different purpose. In its opinion, the Court cites Allen, Adm'x, v. Linger, 78 W.Va. 277, 88 S.E. 837, to support the premise that the appointment by the probate court is presumed valid and within the jurisdiction of the court. In Allen the appointment of a married woman as a personal representative, contrary to the express prohibition of the statutes, was held not to be open to collateral attack.

Since the County Court of Berkeley County has found that Plaintiff has capacity to act as administratrix, this Court has neither precept nor permit to negate that decision. Because of her appointment in West Virginia, Plaintiff is entitled to bring the action for wrongful death under the statute in effect at the time of deceased's death.

In determining whether there is diversity, the Court must look to the citizenship of the real party in interest, the Administratrix. Although she was appointed in West Virginia, she is a citizen of Virginia. The Court must look to the state of her residence or citizenship, not to the state of her appointment. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233 (1931); McWilliams v. Dawson, 48 F. Supp. 538 (N.D.Tex. 1943).² Diversity exists in this case for Defendant is an alleged resident of West Virginia upon whom process was served (substituted service on his wife) in West Virginia and the Plaintiffs are both alleged residents of Virginia.³

Defendant has challenged the diversity here as a collusive attempt to confer jurisdiction on his Court in violation of Title 28, Section 1359, United States Code: "A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court."

Although Defendant relies upon Martineau v. City of St. Paul, 172 F.2d 777 (8th Cir., 1949) to support his position, that case concerns the appointment of a guardian and does not reach the problem of Plaintiff's appointment as Administratrix in this case.

The general rule is that the appointment of an Administrator who would qualify under diversity rules is not collusion within the meaning of Title 28, Section 1359, United States Code. In Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab and Transfer Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681 (1928), the Supreme Court considered the question of collusion under Section 37 of the Judicial Code, the predecessor of 28 U.S.C. § 1359. In that case the Respondent corporation was organized in Tennessee through the efforts of a Kentucky corporation which was then dissolved. The transfer, induced by the motive of conferring jurisdiction of an actual dispute in the federal court, was nevertheless an actual and valid transfer in itself, not singularly a feigned or fraudulent transfer. The newly-created Respondent company was the real party in interest in the dispute. The Supreme Court held that jurisdiction was not collusively conferred on the district court and that the motive behind the transfer was not material.

In holding that the selection of an administrator for the purpose of diversity was not invalid under Title 28, Section 1359, United States Code, the Third Circuit Court of Appeals said that where there is a real and substantial controversy and the administrator is entitled to bring the suit, the court does not inquire into the motives for the appointment of the administrator. Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (3rd Cir., 1959), citing Black and White Taxicab & Transfer Co., supra. The court in Corabi further explained that "collusion" carries the implication of an illegal agreement or understanding. In order to find collusion, the court must find that something improper or fraudulent is involved in the attempt to create diversity jurisdiction. The acts of a duly constituted forum of law and its appointment of an administrator is not of itself a secret or fraudulent occurrence.⁴

The 8th Circuit has held that, where an appointment is real and bona fide, even if the sole purpose is to create diversity, it will not be found to be collusive in violation of Title 28, Section 1359, U.S.C. To be a violation, the appointment must be colorable or feigned or for the purpose of perpetrating a fraud. Curb and Gutter Dist. No. 37 of City of Fayetteville v. Parrish, 110 F.2d 902 (8th Cir., 1940); McCoy v. Blakely, 217 F. 2d 227 (8th Cir., 1954).

See also Lang v. Elm City Const. Co., 324 F.2d 235 (2nd Cir., 1963), and annotation, 75 A.L.R.2d 717.

For the reasons set out above Defendant's ...