Smith v. Bevins

• Decision Date: 14 November 1944
• Docket Number: No. 2248.,2248.
• Citation: 57 F. Supp. 760
• Parties: SMITH v. BEVINS et al.
• Court: U.S. District Court — District of Maryland

57 F. Supp. 760

SMITH v. BEVINS et al.

No. 2248.

District Court, D. Maryland.

November 14, 1944.

George W. Phillips, of Philadelphia, Pa., and Briscoe & Jones, of Baltimore, Md., for the plaintiff.

Jack L. Medwedeff and Roszel C. Thomsen, both of Baltimore, Md., for defendants.

CHESNUT, District Judge.

In this case a North Carolina administrator is suing in Maryland on the wrongful death statute of Virginia for the death of his decedent occurring in an automobile collision in Virginia. The jurisdiction of this court is based on diverse citizenship only. The decedent was domiciled in North Carolina where the administrator was appointed, and the latter is a citizen of the State of North Carolina, while the defendants are citizens of Maryland.

Among the defenses in the answer to the complaint is the alleged incapacity of the North Carolina administrator to maintain this suit in Maryland. After filing the answer the defendants have now moved for a summary judgment which may be treated as a motion to dismiss the complaint, or a motion for judgment on the pleadings, Federal Rules of Civil Procedure, Rule 12(c), 28 U.S.C.A. following section 723c, for the reason stated. Counsel for the defendants concede that under the presently applicable law the suit could be maintained here by an administrator appointed in Virginia where the accident occurred, or possibly by an administrator appointed in Maryland which is the forum; but the contention is that the suit may not be maintained by an administrator appointed elsewhere as in North Carolina in the instant case, although the latter State was the domicile of the decedent.

The question presented depends primarily on the proper construction and application of the Virginia statute to be found in the Virginia Code of 1942, §§ 5786-5788, and secondarily on the capacity of the plaintiff to sue in Maryland (see F.R.C.P. Rule 17 (b). This statute provides that suit must be brought within one year after the death of the injured party "by and in the name of the personal representative of such deceased person"; the amount of damages to be awarded to be fair and just as determined by the jury not exceeding $15,000, and the jury may direct in what proportion it may be distributed to the surviving widow or husband or children and grandchildren of the deceased, or if there be none such, then to the parents, brothers and sisters of the deceased and the sum so awarded to be free from all debts and liabilities of the deceased; but if there be no such surviving beneficiaries the amount of the judgment when collected by the personal representatives shall be assets in his hands to be disposed of according to law. The complaint in this case alleges that the decedent was survived by her husband and by one minor child.

It will be noted that the Virginia statute requires the suit to be brought by the "personal representative" of the decedent but without further description of that representative. The statute does not prescribe that the personal representative so authorized to sue must be appointed in Virginia or in any other particular jurisdiction; but counsel for the defendants contend that the statute must be construed to mean that the personal representative must be one appointed either in Virginia where the accident occurred, or, where the suit is brought in another State, then the administrator, if not appointed in Virginia, must have been appointed in the State of the forum.

The general subject matter is not new in this court. In Rose v. Phillips Packing Co., Inc., D.C., 21 F.Supp. 485, it was held that a Virginia administrator could maintain a suit here based on the Virginia statute. At the time of the death in that case the Maryland Court refused to entertain suits on foreign statutes similar to the Virginia statute on the ground that the Maryland Lord Campbell's Act was substantially dissimilar to the foreign statute. Ash v. Baltimore & O. R. Co., 72 Md. 144, 19 A. 643, 20 Am.St.Rep. 461; London Guarantee & Accident Co. v. Balgowan, S. S. Co., Ltd., 161 Md. 145, 155 A. 334, 77 A.L.R. 1302; Davis v. Ruzicka, 170 Md. 112, 183 A. 569. The holding of this court to the contrary of these Maryland cases was at the time based on the then currently well established federal decisions. Stewart v. Baltimore & O. R. R. Co. 168 U.S. 445, 18 S.Ct. 105, 42 L.Ed. 537; Weissengoff v. Davis, 4 Cir., 260 F. 16. Since the decision in Rose v. Phillips Packing Co. supra, two legally important events have occurred. In Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the Supreme Court decided that in diverse citizenship cases the federal courts must follow State decisions as well as State statutes. This recent doctrine would, of course, be decisive here except for the fact that effective June 1, 1937, the Maryland rule was changed by statute. Maryland Code of 1939, Art. 67, § 2. This recent statute provides that in suits for wrongful deaths outside of Maryland, in any State, District of Columbia or Territory of the United States, "the Courts of this State shall apply the law of such other state * * * to the facts of the particular case, as though such foreign law were the law of this State." The statute further provided "that the rules of pleading and procedure effective in the Court of this State in which the action is pending govern and be so applied as to give effect to the rights and obligations created by and existing under the laws of the foreign jurisdiction in which the wrongful act, neglect or default occurred;". The wording of this latter provision and its purpose and effect is not entirely clear; and there is no available legislative history to aid the construction. Possibly the draftsman had in view the following section of the Maryland Lord Campbell's Act (Art. 67, § 3) which provides that "every such action * * * shall be brought by and in the name of the State of Maryland for the use of the person entitled to damages;". It is not contended in this case that the action on the Virginia statute should be brought in the name of the State of Maryland. Cf. State of Maryland for Use of Joynes v. Coard, 175 Va. 571, 9 S.E.2d 454. But however that may be, the wording of the provision seems to make it clear enough that despite possible differences in pleading and procedure between the law of the place of the wrong and that of the forum in Maryland, the substantial rights and obligations created by the foreign law are to be enforced in Maryland. And as the foreign statute in this case gives the right of action to the personal representative, the strong implication is that the suit can be maintained by the personal representative and need not be maintained in the name of the State of Maryland, which is only a very nominal party.

The precise point in the instant case was not adjudicated in Rose v. Phillips Packing Co. supra, because the suit was there brought by a Virginia administrator; but in a later case in this court, Willis v. Pan-American Refining Co., D.C., 26 F.Supp. 990, an Ohio administrator of a deceased seaman, fatally injured in Louisiana, was permitted to sue in this court. Ohio was apparently his domicile. In that case the right of action was also given (by the federal Jones Act, 46 U.S.C.A. § 688) to "the personal representative" of the decedent without further specification or description. Both the Rose and Willis Cases were settled without trial and without appeal.

One of the objections urged in the instant case by counsel for the defendants to the capacity of the North Carolina administrator to sue is based on the general rule that foreign administrators or executors have no authority to maintain suits in a State other than that of their appointment; and that local administration must be granted to maintain the suit. The reason for this rule is, of course, the protection of local creditors. In Maryland this rule is thus expressed — "Nothing is better settled than that such appointment and qualification (of a foreign administrator) had no extra-territorial effect, and conferred on them no right to maintain a suit in Maryland, upon the cause of action belonging to their testator." (Italics supplied) Wright, Ex'r v. Gilbert, 51 Md. 146, 152; and again it was said in Von Lingen v. Field, 154 Md. 638, 647, 141 A. 390, 394, 927 — "It has been held by this court that executors who have not obtained letters testamentary in Maryland have no right to sue here upon a cause of action belonging to the testator. Wright v. Gilbert, 51 Md. 146; Citizens' Nat. Bank of Baltimore v. Sharp, 53 Md. 521." See also Maryland Code of 1939, Art. 93, §§ 80-82. But, as is pointed out in Rose v. Phillips Packing Co., and Willis v. Pan-American Refining Co., supra, this rule has no proper application to the instant case where a foreign administrator sues, not upon a cause of action belonging to the decedent, but as a designee under a statute which confers a right of action, not for the benefit of the decedent's estate, but for the recovery of a trust fund for the exclusive benefit of certain specified beneficiaries named in the statute. Counsel for the defendants has not referred me to any Maryland case or statute, nor do I know of any, that would prohibit suit by a foreign administrator in a case of this kind. The Maryland cases above cited which refuse to permit suits in Maryland based on foreign statutes of this nature, were put upon the ground of their dissimilarity to the Maryland statute, and not on the ground that the suit was by a foreign administrator as such. I do not know any considerations of Maryland public policy that would prohibit the suit in this case by a North Carolina administrator. Furthermore, it seems to be implicit in the 1937 amendment to the Maryland statute that suit can be maintained here to enforce the Virginia statute by the person designated therein as competent to sue; and indeed counsel for the defendants in this case concede that a...