Tinker v. Northwest Airlines, Inc.

FREED, District Judge.

This is an action for wrongful death. The complaint charges that decedent was killed in the crash of a plane owned and operated by defendant Northwest Airlines, Inc. and manufactured by defendant Glenn L. Martin Company. It is claimed that the accident was caused by defendants’ negligence in the manufacture, construction, repair, and maintenance of the aircraft.

At the time of the accident the decedent was employed by E. I. du Pont de Nemours & Co. in Pennsylvania. Pursuant to the Pennsylvania Workmen’s Compensation Act, du Pont has paid approximately $1,-500 to the plaintiff as beneficiary. By virtue of Section 319 of this Act, Purdon’s Pa.Stat.Ann. Title 77, § 671, du Pont is subrogated to any rights the employee or his personal representative may have against a third person to the extent that it has paid compensation.

Defendant Martin now seeks, by motion, to have du Pont joined as a party plaintiff on the ground that du Pont is a real party in interest, Rule 17, Federal Rules of Civil Procedure, 28 U.S.C.A., and is a necessary party within the meaning of Rule 19.

Subsequent to the presentation of this motion, du Pont assigned its interest, in respect of these defendants, to the plaintiff. This assignment is presented in answer to the motion.

Defendant Martin, by reply brief, has requested this Court to disregard the assignment. No contention is made denying the validity or effect of the assignment. The position taken is that a transfer of interest pendente lite operates to defeat the real party in interest provisions, hence is. not to be tolerated. No authority for this proposition has been urged in its support.

This Court is of the opinion that a transfer of interest pendente lite is not prohibited by the Federal Rules of Civil Procedure. Indeed when such a transfer has been made, Rule 25(c) authorizes a substitution of parties by the Court in its dis- , cretion. There may well be situations where a transfer should not be countenanced. It does not appear that such circumstances exist in this cause.

The -motion will be overruled.