St. Bernard v. Shane

• Decision Date: 06 March 1915
• Docket Number: 2547.
• Citation: 220 F. 852
• Parties: ST. BERNARD v. SHANE et al.
• Court: U.S. Court of Appeals — Sixth Circuit

220 F. 852

ST. BERNARD v. SHANE et al.

No. 2547.

United States Court of Appeals, Sixth Circuit.

March 6, 1915

H. W Ewing, of Cleveland, Ohio, for plaintiff in error.

I. L Evans, of Cleveland, Ohio, for defendants in error.

Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge.

KNAPPEN Circuit Judge.

Plaintiff an administrator appointed by a probate court of Michigan sued the defendants for negligent injuries causing decedent's death, the injuries and death occurring in the state of Illinois, while decedent was in the employ of defendants, acting as receivers under appointment of the court below in the operation of a steamboat in Illinois. The original petition was demurred to, first, because of plaintiff's alleged incapacity to sue; and, second, for lack of statement of cause of action. The demurrer was sustained as to the second ground ((D.C.) 201 F. 453), and an amended petition filed, which was stricken from the files and leave given to file instanter a second amended petition. On the next day, the second amended petition was filed, a rehearing of the demurrer to the original petition was granted and hearing had thereon, as well as on motion to strike the second amended petition from the files. The petition to strike was sustained as was also the demurrer to the original petition, which was thereupon dismissed. Hence this writ of error.

We may pass by defendants' objection that the second amended petition was not filed instanter, because not filed until the next day after order therefore, because, first, the term 'instanter,' when used with reference to legal proceedings, usually means within 24 hours, and we are cited to no contrary rule in Ohio; and, second, hearing was actually had upon the demurrer, the sustaining of which and the dismissal of the petition thereon constitute plaintiff's fundamental grievance. The reference in the second amended petition to the Ohio amendatory statute of 1913 (not then effective) did not authorize striking the petition from the files. In this opinion, we shall disregard that statutory amendment.

We may also disregard the lack of diversity of citizenship, for the court below had unquestioned jurisdiction over an action against receivers of its own appointment, based upon an alleged negligent performance of the duties of the receivership, and regardless of the citizenship of the parties. See decision of this court in Cobb v. Sertic, 218 F. 320, and cases there cited.

Turning, then, to the demurrer: The sufficiency of the allegations of negligence, as stating a right of action in Illinois, is not challenged; the grounds of demurrer are related, and concern only the plaintiff's right to maintain her suit in the courts of Ohio.

The pertinent situation is this: In the absence of statute, a foreign administrator could not maintain suit upon a cause of action of this nature, or indeed upon any right of action accruing to the deceased. Noonan v. Bradley, 9 Wall. 394, 400, 19 L.Ed. 757; Maysville, etc., Co. v. Marvin (C.C.A. 6) 59 F. 91, 8 C.C.A. 21. And see Courtney v. Pradt (C.C.A. 6) 160 F. 561, 87 C.C.A. 463, and cases there cited. But, by section 10769 of the Ohio Code, a foreign executor or administrator is empowered to prosecute suits 'in any court in this state, in his capacity as such, in like manner and under like restriction as a nonresident is permitted to sue.'

At the common law, however, no civil action lies for negligent injuries resulting in death. Insurance Co. v. Brame, 95 U.S. 754, 756, 24 L.Ed. 580; Dennick v. Railroad Co., 103 U.S. 11, 21, 26 L.Ed. 439. But Illinois has a death statute, which is substantially Lord Campbell's Act, giving the same right of action where death ensues as would exist if death had not ensued. Jones & A. Ill. Stat. Ann. (1913) c. 70, Sec. 1, par. 6184. And the rule is well settled that actions of tort upon death statutes of this nature, being transitory, may be brought in the courts, state or federal, of a state other than that in which the right of action accrued (Dennick v. Railroad Co., 103 U.S. 11, 18, 26 L.Ed. 439), unless, at least, the statute of the state in which the cause of action arose is in substance inconsistent with the statutes or public policy of the state in which the right of action is sought to be enforced (Texas Pac. R.R. Co. v. Cox, 145 U.S. 593, 605, 12 Sup.Ct. 905, 36 L.Ed. 829; Huntington v. Attrill, 146 U.S. 657, 13 Sup.Ct. 224, 36 L.Ed. 1123; No. Pac. R.R. Co. v. Babcock, 154 U.S. 190, 14 Sup.Ct. 978, 38 L.Ed. 958; Stewart v. B. & O.R.R. Co., 168 U.S. 445, 448, 18 Sup.Ct. 105, 42 L.Ed. 537). Such statutes have been enforced, not only in actions at law, but in suits in admiralty. Several decisions of the Supreme Court and of this court (of the latter class) are cited in the margin. ^[1] Ohio, likewise, has a death statute, which also is substantially Lord Campbell's Act, and gives in broad terms a right of recovery wherever it would have existed had death ensued. The Ohio statute, however, contains a provision that the right of action for death by wrongful act arising under the statute of another state may be enforced in Ohio 'in all cases where such other state * * * allows the enforcement in its courts of the statute of this state of a like character' (G.C. Ohio, Sec. 10770, as amended by Ohio Laws 1910, p. 198); and it was said by the Supreme Court of that state, under a similar statute, that the courts of Ohio have not jurisdiction over a suit brought on account of a death occurring in a state which did not give right of action for death occurring outside of such state. Railroad Co. v. Fox, 64 Ohio St. 133, 142, 59 N.E. 888

The Illinois statute referred to forbids action in that state to recover damages for a death occurring outside the state, and the provision has been literally enforced by the Supreme Court of that state. Dougherty v. American, etc., Co., 255 Ill. 369, 371, 99 N.E. 619, Ann. Cas. 1913D, 568.

As an independent proposition, plaintiff's right to maintain this suit in her capacity of foreign administrator may be laid out of account, for it is clear that she has the same right to sue as if she had been appointed by the courts of Ohio. The question is narrowed to this: Whether any one in any representative capacity has the right to maintain this suit in the court below upon the cause of action given by the Illinois statute?

We think this question demands an affirmative answer. The suit is not brought upon the Ohio statute, but solely upon the statute of Illinois. The existence of and limitations on this right of action are unaffected by the laws of Ohio, and are governed solely by the laws of Illinois. No. Pac. R.R Co. v. Babcock, supra, 154 U.S. 199, 14 Sup.Ct. 978, 38 L.Ed. 958; The Harrisburg, 119 U.S. 199, 214, 7 Sup.Ct. 140, 30 L.Ed. 358. The right of action in that state was perfect. So far as concerns that right of action, there is no conflict whatever between the Illinois statute and the statutes or public policy of...