Woollen v. Lorenz, 6982.

• Decision Date: 02 May 1938
• Docket Number: No. 6982.,6982.
• Citation: 68 App. DC 389,98 F.2d 261
• Parties: WOOLLEN v. LORENZ.
• Court: U.S. Court of Appeals — District of Columbia Circuit

68 App. DC 389, 98 F.2d 261 (1938)

WOOLLEN v. LORENZ.

No. 6982.

United States Court of Appeals for the District of Columbia.

Argued March 9, 1938.

Decided May 2, 1938.

Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellant.

Henry I. Quinn, of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

GRONER, C. J.

Appellant, a resident of North Carolina, brought her action in the court below against the administrator of the estate of Clarence B. Seal to recover damages for personal injuries claimed to have been sustained by her in North Carolina as the result of Seal's negligent operation of an automobile in which appellant was riding as his guest.

The declaration alleges that she was injured September 1934 and that appellee was appointed administrator in September 1936. The concluding paragraph of the declaration is as follows: "By the law of the State of North Carolina said cause of action which said plaintiff has against said decedent survives against such decedent's estate, and is not barred by the death of the tort feasor." The administrator demurred to the declaration on the grounds that the law of the District of Columbia governed and that under that law the action could not be maintained. The lower court sustained the demurrer, and the case is here on appeal.

The single question is whether an action may be maintained in the District of Columbia by a resident of North Carolina against the administrator of a deceased resident of the District to recover for personal injuries alleged to have been inflicted in North Carolina by the negligent act of the decedent.

Counsel for appellant have been diligent in assembling authorities which support the contention that the law of the place where a cause of action arises governs its survival, and undoubtedly that is the correct rule. Ormsby v. Chase, 290 U. S. 387, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499. But the rule assumes the existence, in the state of the forum, of the necessary procedural machinery. Accordingly the rule does not meet the question in this case. Rather it is whether the laws of the District of Columbia permit the administrator of the deceased wrongdoer to be sued on a personal injury claim like that asserted in this cause. If they do not, the court below was without jurisdiction to hear the cause and appellant is without remedy "because the forum fails to provide a court with jurisdiction of the controversy." Bradford Electric Light Co., Inc., v. Clapper, 286 U. S. 145, 160, 52 S.Ct. 571, 576, 76 L.Ed. 1026, 82 A.L.R. 696. And this brings us to consider the local statute.

Title 29, section 251, of the Code of 1929, provides: "Executors and administrators shall have full power and authority to commence and prosecute any personal action at law or in equity which the testator or intestate might have commenced and prosecuted, except actions for injuries to the person or to the reputation; and they shall also be liable to be sued * * * in any action at law or in equity, except as aforesaid, which might have been maintained against the deceased." The concluding part of the foregoing section, standing unqualified and unconstrued, says in plain words that an administrator shall not be liable to suit in the courts of the District of Columbia upon personal injury claims. Until comparatively recently many of the States retained the common law rule by similar statutes, and this was true of the two States surrounding the District of Columbia and to which the District is both geographically and historically most nearly related. In each the bar against survival of personal injury actions has now been removed, and a suit in all respects similar to this would now be triable in either Virginia or Maryland. But this change of legislative viewpoint does not affect the question we have to decide, for neither the question of public policy on the one hand, nor of comity on the other, is involved so far as we are concerned. Here, as we have seen, we are confronted by a statute refusing permission to anyone to bring an action against the executor or administrator of a deceased...