Thames v. Mississippi Ex Rel. Shoemaker , 117 F.2d 949 ( 1941 )

SIBLEY, Circuit Judge.

The judgments from which appeal is taken are one for $20,000 in favor of “the State of Mississippi for the use and benefit of J. E. Shoemaker, Admr. of the estate of Ray Grant” against “J. L. Thames, Superintendent of the Mississippi State Penitentiary and United States Fidelity & Guaranty Company,” and one refusing to set aside this judgment for want of jurisdiction because there was no diversity of citizenship. The question of jurisdiction we have found controlling and will state the case with special reference to it.

The suit was filed in the district court in the name of the State of Mississippi for the use and benefit of J. E. Shoemaker, administrator of the estate of Ray Grant, upon the official bond of Thames as Superintendent of the State Penitentiary, he and his surety being defendants. The bond is payable to the State of Mississippi and conditioned that Thames “shall well and faithfully perform all the duties of his said office.” The breach alleged is that Thames as Superintendent wrongfully and illegally allowed a convict to go at large as a “trusty”, and the convict had murdered Ray Grant, who left no wife or children, but his parents and brother were entitled to recover for his wrongful death under the laws of Mississippi. The federal jurisdiction relied on was that Shoemaker, the administrator of Grant, is a citizen of Louisiana, and Thames a citizen of Mississippi and his surety a corporation of Maryland. Among other things, the answer set up that while Shoemaker was a citizen of Louisiana Grant’s father and mother and brother, naming them, were all citizens of Mississippi, and were the real parties, Shoemaker being but a nominal party, so that there was no diversity of citizenship. The truth about the several citizenships is not in dispute. On the motion to set aside the judgment it was further shown that the application to the Mississippi probate court which appointed Shoemaker as Grant’s administrator was made by the father, mother and brother, and stated there was no estate except a claim against the bond of Thames for Grant’s death, and ‘the administrator was appointed solely to collect' damages on this claim.

In upholding the jurisdiction of his court the district judge rendered a very clear and cogent opinion, the substance of which is that the matter is controlled by the case of Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904, in which an administrator suing for a death under the statute of Oklahoma was held to be a trustee suing in his own right, whose citizenship gave federal jurisdiction; rather than by Mississippi Power Co. v. Archibald, Miss., 196 So. 760, in which an administrator suing under the Mississippi statute was held to be a nominal party without title or interest, whose citizenship is to be disregarded.

The present case differs from both those cited in that it is not a suit in tort but one to enforce a contract. Section 2889 of the Code of Mississippi of 1930 provides: “The bonds of all public officers shall be made payable to the state, and shall be put in suit in the name of the state for the use and benefit of any person injured by the breach thereof.” Though the State of Mississippi is the necessary plaintiff, since she has no interest at stake, she is a nominal party not to be considered on the question of diversity of citizenship. McLean v. Mississippi ex rel. Roy, 5 Cir., 96 F.2d 741, 119 A.L.R. 670. The question is whether the person for whose “use and benefit” the State is suing is the administrator, or the mother and father and brother. It is not to be answered by the fact that the administrator is put forward as suing any more than by the fact that the State is put forward. The real use and benefit belong only to the father and mother and brother, and the administrator has no more actual interest than the State. The true usees are the mother and father and brother. Mississippi Power Co. v. Archibald, Miss., 196 So. 760.

If this suit be considered the exact equivalent of one in tort brought by an administrator under Section 510 of the Code of Mississippi the same conclusion must be reached. Section 510 gives a right of action for a death in case the party injured could have sued. It does not cause to survive or to be revived the deceased’s right of action, but enables designated members of his family to recover damages, which are not subject to payment of the deceased’s debts, and are to be “such * * * as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.” There can be but one suit. It matters not which of the family beneficiaries sues, the proceeds belong to those entitled as if they all had been named as plaintiffs. Kelly, Sheriff, v. Howard, 98 Miss. 543, 54 So. 10, Ann.Cas.1913B, 229. The statute specifies how the damages are to be distributed to the family beneficiaries. But “if the deceased have neither husband, or wife, or children, or father, or mother, or sister, or brother, then the damages shall go to the legal representative, subject to debts and general distribution. * * * The action for such damages may be brought in the name of the personal representative of the deceased person, for the benefit of all persons entitled under the law to recover or by widow * * * or by the parent for the death of a child,” etc. In the present case there are a father, a mother, and a brother, who are the beneficiaries and could have sued in their own names; and the general estate of Grant has no interest at all in the recovery. The father and mother and brother did not sue, but chose to sue by an administrator selected by them having a different citizenship. Is he invested with a right of action as a trustee, or is he only a figurehead, virtually a next friend, a nominal party whose citizenship does not matter? We think his connection with and interest in the right of action created by the statute depend on the construction of the statute, and involve therefore a question of State law on which the Supreme Court of Mississippi speaks with final authority. That court has spoken very recently and positively on the exact question presented here in Mississippi Power Co. v. Archibald, supra, holding that the administrator is not a necessary party, has no interest either personally or as administrator, and is not even entitled to fees for paying over the money he recovers. The court said [196 So. 762]: “No title to damages recoverable for the wrongful death of a person ever vests in an administrator under said section 510, supra, by virtue of his appointment, where the deceased leaves surviving him those entitled under the law to recover the damages sustained. * * * In the case at bar he is purely a formal party, with no more interest in the litigation, so far as the estate is concerned, than a next friend would have. * * * Unless asked to lend his name as nominal plaintiff, the suit is of no concern to him.” These expressions state that he is no trustee of a right of action, but a mere agent or next friend who is permitted to sue as such. As the statute itself puts it, the action “may be brought in [his] name * * * . for the benefit of” the real beneficiaries. As usees, the suit is theirs, not his. We might have, in view of other Mississippi decisions, some difficulty in reaching this interpretation of the Mississippi statute, but are bound by this latest decision on the very point.

Whether the citizenship of such a plaintiff should be regarded in testing federal jurisdiction is a federal question on which we are not bound by the decision of the Mississippi court, but by the federal decisions. The case of Mecom v. Fitzsimmons Co., 284 U.S. 183, 52 S.Ct. 84, 86, 76 L.Ed. 233, 77 A.L.R. 904, is pointed to as controlling. It is there recognized that a nominal party having no interest in the result and not in control of the litigation, or a next friend who has no right of action in himself though in control of the litigation, is not to be considered. It holds that “where an administrator is required to bring the suit under a statute giving a right to recover for death by wrongful act, and is, as here, charged with the responsibility for the conduct or settlement of such suit and the' distribution of its proceeds to the persons entitled under the statute, and is liable upon his official bond for failure to act with diligence and fidelity, he is the real party in interest, and his citizenship, rather than that of the beneficiaries, is determinative of federal jurisdiction.” The court adds: “The applicable statutes make the administrator the trustee of an express trust and require the suit to be brought and controlled by him”; and the Oklahoma statutes and decisions cited show the truth of that statement. As has been seen, the Mississippi statute is otherwise. The right to sue is not necessarily or primarily in the administrator. When there survive members of the deceased’s family they or any of them can sue. The estate has no interest at all in the death and the administrator has no duty. He acts only when and because the beneficiaries ask him to, and as their representative before the court; and we judge, from this latest exposition of his status by the Mississippi court, the adult beneficiaries and not the administrator are in control of and responsible for the suit. When the administrator’s relation to the suit is such, we agree with the conclusion of the Mississippi court that he is not the substantial party to the controversy and his citizenship will not determine federal jurisdiction over it.

There not being diversity of citizenship between the substantial parties to the controversy, the district court has no jurisdiction. The judgment is reversed and the cause remanded with direction to vacate the verdict and dismiss the petition for want of jurisdiction.