Vroon v. Templin
| Decision Date | 20 April 1960 |
| Docket Number | No. 8021.,8021. |
| Citation | 278 F.2d 345 |
| Parties | James L. VROON, legal guardian of Robert L. Vroon, incompetent, Appellant, v. Thomas T. TEMPLIN and Raymond H. Knapp, individually and trading as All State Trailer Transport Company, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
L. David Lindauer, Portsmouth, Va. (Bangel, Bangel & Bangel, Portsmouth, Va., on brief), for appellant.
E. Page Preston, Norfolk, Va. (Preston & Preston, and Worthington, White & Harper, Norfolk, Va., on brief), for appellees.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and PAUL, District Judge.
James L. Vroon, as guardian of his son, Robert L. Vroon, instituted this action in the District Court against Thomas T. Templin and Raymond H. Knapp, trading as All State Trailer Transport Company. The complaint alleges that Robert L. Vroon, as a result of the negligent acts of the defendants, had suffered injuries which rendered him mentally incompetent and that James L. Vroon had duly qualified as guardian of Robert in the State of Michigan, of which state both are residents. The defendants are residents of Virginia and jurisdiction is alleged on the ground of diversity of citizenship. The parties will be referred to as plaintiff and defendants, the positions they occupied in the District Court.
The defendants filed a motion to dismiss the action "because as appears from the face of the complaint the plaintiff is a guardian who is a non-resident of the State of Virginia and is without capacity to maintain this action." The District Court sustained the motion and from its order dismissing the action the plaintiff has appealed.
The motion to dismiss was grounded on Sect. 26-59 of the Code of Virginia of 1950 as amended and the action of the District Judge was based on his interpretation of that section. The text of the statute, so far as material, is set out and discussed hereinafter.
In his memorandum dismissing the action the District Judge stated the question before him in these words:
"The single issue presented by defendants\' motion to dismiss is the right of a non-resident legal guardian for an incompetent to institute a tort action in the federal court against Virginia defendants where jurisdiction is based solely on diversity of citizenship and no resident guardian has qualified in Virginia."
In resisting the motion to dismiss the plaintiff urged (1) that his right to maintain the action was determined by the provisions of Rule 17 of the Federal Rules of Civil Procedure, particularly paragraph (c) of the rule, 28 U.S.C.A., and that this right was not controlled by state law; and (2) that even if his right to sue was governed by state law the statute in question did not forbid him to maintain the suit.
The District Court ruled against both of these contentions. It held that under Rule 17 the capacity of one acting in a representative capacity to sue in a federal court was controlled by the law of the state wherein the suit was brought. And it further held that under the Virginia law (Sect. 26-59) the plaintiff, being a non-resident, was required to have a resident of the state qualify along with him as co-guardian before he could maintain the action. The appellant urges that the District Court erred in the construction of both Rule 17 and of the state statute.
It may be said that Rule 17 is lacking in complete clarity. The view held by the lower court in this case was that in any case where the plaintiff is acting in a representative capacity, his capacity to sue is, by the provisions of Rule 17(b), to be determined by the law of the state where the action is instituted. This view has been voiced in a number of decided cases and by various text writers. On the other hand it has been questioned by persons who point out that the representative capacities enumerated in paragraph (a) of the rule are not the same as those named in paragraph (c) and who urge that paragraph (b) applies only to the first, while those representatives named in paragraph (c) are under no restriction of state law. See dictum of Judge Biggs in Fallat v. Gouran, 3 Cir., 220 F.2d 325 at page 328.
However, in our view of this case we find it unnecessary to construe the provisions of Rule 17, for the reason that we are of opinion that the District Court erred in holding that the right of the plaintiff to sue in Virginia was determined by Sect. 26-59. As we construe the statute it does not deny the right of a foreign guardian to bring suit in Virginia in his own name and alone. If the right is to be denied the authority for its denial must be found elsewhere in Virginia law. And this aspect of the case was not considered in the District Court.
Inasmuch as the District Court based its holding on its construction of Sect. 26-59, as amended in 1950, an examination of that section and of its effect is required.
Prior to 1950 the provisions of the section pertinent to this case were as follows:
"No person not a resident of this State * * * shall be appointed or allowed to qualify as personal representative of any decedent, or appointed as guardian of an infant or committee of any person non compos mentis, unless there also be appointed to serve with the non-resident personal representative, guardian or committee, a person resident in this State * * *."
As amended in 1950 the section, so far as pertinent, now reads:
"No person not a resident of this State * * * shall be appointed or allowed to qualify or act as personal representative * * * of any decedent, or appointed as guardian of an infant or committee of any person non compos mentis, unless there be also appointed to serve with the non-resident personal representative, * * * guardian or committee, a person resident in this State * * *." (Emphasis has been supplied to the words "or act" which represent the 1950 amendment.
It is to be noted that the statute, as it stood prior to 1950, did not in terms forbid a non-resident fiduciary from bringing suit in Virginia. What it did forbid was the appointment or qualification of such non-resident in Virginia except in association with a co-fiduciary who was a resident.
The federal courts in Virginia, prior to 1950, had occasion in several cases to consider the statute as then written and as related to non-resident administrators who had instituted actions for wrongful death. See La May v. Maddox, D.C.W.D. Va., 68 F.Supp. 25, decided by Judge Barksdale in 1946; Reed v. Shilcutt, D.C.E.D.Va., 119 F.Supp. 652, decided by Judge Pollard in 1946. In both of these cases the courts upheld the right of an administrator appointed and qualified in a foreign state to sue in Virginia without associating a resident administrator.
The holdings in La May v. Maddox and Reed v. Shilcutt, cited above were supported by implication by the decision of this court in Rybolt v. Jarrett, 4 Cir., 112 F.2d 642, 645 (decided in 1940). In that case an administrator appointed in Indiana brought suit in the federal court in West Virginia. He found himself faced with a West Virginia statute which provided that "no person not a resident of this State shall be appointed or act as executor, administrator." etc. (Emphasis supplied) This court, affirming the lower court, held that since the statute forbid a non-resident "to act" as administrator dismissal of the action was required. But in the opinion by Judge Dobie (at page 644) it is stated that if it were not for this statute "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."
These cases do not deny nor is it questioned that Virginia has generally adhered to the common law ruling that a foreign administrator who has acquired no status in the state is without authority to institute in his official capacity any suit in the courts of the state. See Fugate v. Moore, 86 Va. 1045, 11 S.E. 1063; Moore v. Smith, 177 Va. 621, 15 S.E.2d 48; McDaniel v. North Carolina Pulp Co., 198 Va. 612, 615...
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