Southern Pac. Co. v. De Valle Da Costa

• Decision Date: 04 October 1911
• Docket Number: 928.
• Citation: 190 F. 689
• Parties: SOUTHERN PAC. CO. v. DE VALLE DA COSTA.
• Court: U.S. Court of Appeals — First Circuit

190 F. 689

SOUTHERN PAC. CO. v. DE VALLE DA COSTA.

No. 928.

United States Court of Appeals, First Circuit.

October 4, 1911

[Copyrighted Material Omitted]

William D. Turner (Reginald Foster and George Hoague, on the brief) for plaintiff in error.

Wendall P. Murray (Charles F. Smith, on the brief), for defendant in error.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

This is a writ of error for review of the rulings of the Circuit Court in an action of tort for causing the death of the plaintiff's intestate, Delfino Rodriguez, through negligence.

The case has been before the courts in various aspects. See 160 F. 216; 167 F. 654; and 176 F. 843, 100 C.C.A. 313.

Rodriguez a subject of the Kingdom of Portugal, was a coal passer on the steamship El Valle. His bunk was in the forecastle, wherein was an auxiliary engine used for moving the capstan and windlass. Steam was supplied to this engine by a steam pipe connected with a steam valve. By the bursting of this valve, Rodriguez, while in his bunk, was so badly scalded that he died in consequence. The vessel was on the high seas at the time of the injury.

Suit was brought in the superior court for the county of Suffolk and commonwealth of Massachusetts by the present defendant in error, as administrator appointed by a probate court of the state of Massachusetts. Upon the petition of the defendant, a corporation of the state of Kentucky, the case was removed to the Circuit Court.

The defendant by plea in abatement denied the validity of the grant of letters of administration. Upon the trial of said plea, it was stipulated as follows:

'It is hereby agreed that, unless the right of action against the defendant is assets in this jurisdiction, the deceased having no other property here, and not having been at the time of his death a resident of the state of Massachusetts, the plea in abatement is to be sustained; but, if such right of action is assets sufficient to give jurisdiction to the probate court to appoint an administrator here, the plea in abatement is to be overruled; and the case is submitted to the court for a ruling upon the matter. This agreement is only to apply to this case and not to be evidence in any other proceeding.'

The overruling of the plea in abatement is assigned as error. A jury trial was then had, wherein the jury found for the plaintiff and assessed damages in the sum of $5,000.

The statute of the state of Kentucky, whereof the Southern Pacific Company, owner of the steamship, is a citizen, was held by the Circuit Court to give a right of action for a death occurring while the vessel was on the high seas. The Hamilton, 207 U.S. 398, 28 Sup.Ct. 133, 52 L.Ed. 264, we think directly supports this ruling; the court saying of a similar statute:

'We construe the statute as intended to govern all cases which it is competent to govern, or at least not to be confined to deaths occasioned on land, etc.'

We find nothing in the opinion in La Bourgogne, 210 U.S. 95, 28 Sup.Ct. 664, 52 L.Ed. 973, which limits the decision in The Hamilton, or renders inapplicable to the Kentucky statute a like construction.

In The Hamilton, 207 U.S. 405, 28 Sup.Ct. 133, 52 L.Ed. 264, there was reserved the question whether the statute was intended to include foreign subjects. Upon this point, however, the opinion of the Circuit Court in Vetaloro v. Perkins (C.C.) 101 F. 393, and the opinion in Mulhall v. Fallon, 176 Mass. 266, 57 N.E. 386, 54 L.R.A. 934, 79 Am.St.Rep. 309, may be regarded as stating the correct view of the law. We are of the opinion that the Kentucky statute renders the defendant liable for the death of an alien occurring on the high seas through its negligence.

This liability will be enforced in the courts of another jurisdiction having a similar statute if there is no violation of the public policy of the state wherein suit is brought. Northern Pacific R.R. v. Babcock, 154 U.S. 190, 14 Sup.Ct. 978, 38 L.Ed. 958; Stewart v. Baltimore & Ohio R. Co., 168 U.S. 455, 18 Sup.Ct. 105, 42 L.Ed. 537.

While there is a general acceptance of this rule, there is much conflict of authority over the question of the proper party to bring suit to enforce the liability. If the statute which gives the right provides for a suit by the personal representative, a question arises whether it is a personal representative appointed by the courts of the state wherein death was caused, a personal representative appointed at the decedent's domicile, or a personal representative appointed in the jurisdiction where the defendant is sued.

It results that, though a defendant's liability may be clear, whatever course may be taken in an attempt to enforce this liability, there arise objections supported by good authority which imperil the substantial rights of those for whose benefit the liability was imposed. If administration is taken out in the place of domicile of the deceased, objection is made that only the state which gives the right of action can appoint a legal representative with authority to enforce that right of action. If a legal representative is appointed in such state, it is objected in the state wherein suit is brought that the authority of an administrator has the territorial limits of the state of his appointment. If suit is brought in the place of defendant's residence, a twofold objection may be made, that the administrator should have been appointed either at the decedent's domicile or in the state whose statute creates the right of action. If an attempt is made to take ancillary administration, the objection is raised that this right depends upon the existence of assets in the state, and that a claim for damages for death is not assets within the state and does not warrant the appointment of an administrator. See Connor v. N.Y., N.H. & H.R.R., 28 R.I. 560, 68 A. 481, 18 L.R.A.(N.S.) 1252.

The ordinary rule limiting the authority of an administrator to the state of his appointment in many states has been relaxed in actions for causing death on the ground that the personal representative is rather a trustee for the beneficiaries named in the statute than an ordinary administrator; that he is rather a nominal party than the real party in interest; and that his authority is that of a nominal plaintiff

Without questioning these decisions or the reasons assigned for the recognition of a foreign administrator in such cases, we are of the opinion that cases which support the right of a foreign administrator to maintain the suit are not inconsistent with the right to take out letters of administration in the residence of the defendant.

The right to administration is recognized whenever there are assets within the jurisdiction. Is a death claim assets for the purpose of the appointment of an administrator?

The enactment of a statute giving an action for death, and requiring that it shall be brought by a personal representative, we think should be regarded as a conclusive recognition of the right of administration to enforce such a claim. If a statute designates the personal representative of the deceased as the proper plaintiff, to limit the right to cases in which the deceased left assets other than the right of action would introduce an unreasonable and arbitrary distinction. To hold that suit might be brought in the state of Massachusetts for causing death if the deceased left property in the state, but that it could not be brought if he had no property, would be to make a distinction in favor of persons who have estates against persons who have no estates-- to deny the remedy to those most in need of it.

In N.E. Mut. Life Ins. Co. v. Woodworth, 111 U.S. 138, 4 Sup.Ct. 364, 28 L.Ed. 379, it was held that a policy of life insurance is assets for the purpose of founding administration in another state in which a corporation does business and, as required by the statute, has an agent upon whom process may be served. It was held that the debt on the policy is assets, and the grant of letters of administration was upheld.

If simple contract debts are assets where the debtor resides, and if a corporation debtor may be held to have a domicile to give a situs to its debt at the place where it may be sued, the situs of this obligation, under the circumstances, would be in the state of Massachusetts, where the defendant has an agent, unless the rule is different as to obligations for tort and obligations in contract. For a distinction on this ground there seems to be no sufficient reason.

In Blackstone v. Miller, 188 U.S. 189, 23 Sup.Ct. 277, 47 L.Ed. 439, it was said, on a question of situs of the debt, that power over the person of the debtor confers jurisdiction. To hold that by the law of Massachusetts its courts have power over the person of this defendant to compel it to respond to the obligation created by the statute of Kentucky is inconsistent with the view that there cannot be in Massachusetts a competent plaintiff.

The learned circuit judge dismissed the contention that there were no assets in this jurisdiction, as too artificial. 'It is enough that assets and appointment came into being at the same moment.'

This is criticised on the ground that assets of the estate of the deceased do not come into being at all. Stewart v. Baltimore & Ohio R.R. Co., 168 U.S. 445, 18 Sup.Ct. 105, 42 L.Ed. 537, is cited to show that the damages are not part of the estate of the deceased. This was said, however, in connection with the proposition that the plaintiff was simply a nominal plaintiff.

While under certain statutes it may be said that there are no assets of the estate of the decedent subject to the claims of the general creditors of a decedent's estate, yet it should be recognized that the...