CINCINNATI, H. & D. R. CO. v. THIEBAUD, 114 F. 918

SEVERENS, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. In support of the assignments of error, it is contended by counsel in behalf of the railroad company: i. That the case is not within the scope of the Indiana statute fixing the liability of employés.

The contention is that it applies only to persons who are “obeying or conforming to the order of some superior, at the time of such injury, having authority to direct”; and it is said (which appears to be the fact) that there was no proof that the deceased was acting at the time under any special direction, or otherwise than in the discharge of the general duty of his employment. It is insisted for the defendant in error that the bill of exceptions does not purport to contain, all the evidence, and that we may presume that proof was made of such facts as would show that the deceased was under such direction.

But, although the bill of exceptions does not, in. terms, state that it contains the whole case which the evidence tended to make out, yet it purports to state the facts which did appear by the evidence and the admissions of counsel, and it does this in such a way as to indicate that the whole case, so far as the parties deemed it material to the exceptions taken, is presented. It is not in all cases necessary that the bill should expressly declare that it contains all the evidence, or the whole case, in order to repel the presumption that other facts may have been proven or other evidence given.

It is enough if, from the frame of the bill, it is clearly implied that that which is stated constitutes the whole, of what took place upon the trial. Ironwood Store Co. v. Harrison, 75 Mich, 197, 42 N. W. 808; Everett v. Clements, 9 Ark. 480; Leggett v. Grimmett, 36 Ark. 500; Robinson v. Hartridge, 13 Fla. 505. We therefore think that the question under discussion must be considered upon the assumption of the fact that the deceased was not, at the time of the accident, in the execution of any special order or direction.

Counsel for the plaintiff in error contends that the clause in subdivision 4, requiring that the person injured shall have been acting in obedience to the order of some superior, is to be construed in immediate connection with each of the two preceding clauses which describes the classes of persons who commit the injury, and reference is made to two cases decided by the supreme court of- Indiana involving the construction of the third and fourth subdivisions of

section 1 of the act (Laws 1893, pp. 294, 295). Railway Co. v. Little, 149 Ind. 167, 48 N. E. 862; Railroad Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 71 Am. St. Rep. 301. The classification made by the learned judge who delivered the opinion in the case of Railway Co. v. Little of the cases taken out of the operation of the fellow-servant rule by subdivisions 3 and 4 of

section 1 of the act seems to require a construction different from that contended for. But the only question pertinent here actually involved and decided in that case was whether a brakeman was included in the classes of persons by whose negligence the injury is committed. It was held that he was not. In the Montgomery Case, however, it was distinctly held that the concluding clause was to be read in connection with each of the two clauses describing the persons by whose fault the injury happened. We are required to follow the construction of the act given by the supreme court of that state.

But under the obligation of the same rule we are also required by the decision in the last-mentioned case to hold, as was there held, that the requirement that the injured person should be acting in conformity to the order of some superior is equivalent to a requirement that he should be acting in the line of his duty as an employe.

Having regard to the weli-known order of business of railroad companies, of which the court must take judicial notice, it could not be otherwise than that a subordinate, such as a locomotive engineer, when acting in the line of his duty as such, would be acting under the order of some superior. It is stated in the bill of exceptions that the deceased was guilty of no negligence and that he had the right to he with his train at the time and place when and where the accident occurred. This can have no other reasonable meaning than that he was discharging the regular duties of his employment.

The negligence of the conductor and engineer of the other train being conceded, it would seem that a case was made out fulfilling the conditions of the Indiana statute, and, as the accident and death happened in (hat state, that is the law applicable to the-case. Railroad Co. v. Ihlenberg, 43 U. S. App. 726, 21 C. C. A. 546, 75 Fed. 873; Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439. 2.

It was contended that this statute is in contravention of the fourteenth amendment to the federal constitution, which declares that “no state shall deny to any person within its jurisdiction the equal protection of the law,” in that it discriminates between corporations and all other persons. But during the pendency of this case on writ of error this point has been distinctly ruled the other way by the supreme court in Tullis v. Railroad Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192, — a case arising under the same statute. 3.

It is insisted that the circuit court of the United States in Ohio did not have jurisdiction, because, as the petition alleges, the suit is brought' for the benefit of the widow and children of the deceased, who are alleged to have suffered damages by his death; and the point is that, as Thiebaud, the administrator, who brings this suit as a citizen of Indiana, is a nominal party only, having no interest in the recovery, the citizenship of the beneficiaries, who are citizens of Ohio, is to govern in determining the question of jitrisdiction, and that b)r that test, the railroad company being also a citizen of Ohio, it does not exist.

It has been held in numerous cases that where the plaintiff in the suit has no interest, legal or equitable, in the recovery, but is put forward as a formal party in conformity to some statutory appointment made for the purpose, the citizenship of the real party will furnish the test of jurisdiction so far as that party to the case is concerned. McNutt v. Bland, 2 How. 9, 11 L. Ed. 159; Huff v. Hutchinson, 14 How, 586, 14 L. Ed. 553; Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. 278, 28 L. Ed. 822; Indiana v. Glover, 155 U. S. 513, 15 Sup. Ct. 186, 39 L. Ed. 243; Stewart v. Railroad Co., 168 U. S. 445, 18 Sup.

Ct. 105, 42 L. Ed. 537. The case of Blacklock v. Small, 127 U. S. 96, 8 Sup. Ct. 1096, 32 L. Ed. 70, is also cited in the brief of counsel for the plaintiff in error. In this class of cases the nominal plaintiff has no title or interest in the subject of the suit, immediate or remote. He cannot control the litigation, and has no authority to meddle with it.

On the other hand, it is well settled that where the plaintiff sues in the character of a trustee, being vested with the title to the subject of the litigation, even though it is destined to ultimately pass in due course to designated beneficiaries, it is his citizenship which is recognized in settling the question of jurisdiction. It is he who has the control of the action, and, so long as he faithfully discharges the duties of his trust, he is the only party to represent the interest he prosecutes. Coal Co. v. Blatchford, 11 Wall. 172, 20 L. Ed. 179; Knapp v. Railroad Co., 20 Wall. 117, 22 L. Ed. 328; Morris v.

Landauer, 6 U. S. App. 510, 4 C. C. A. 168, 54 Fed. 23; Popp v. Railroad Co. (C. C.) 96 Fed. 465. These citations of cases on either side are by no means exhaustive of the decisions on this subject, but they are sufficient to explain the principle of the distinction. We will refer to one or two comparatively recent decisions, which are supposed to be not in harmony with the rules above stated. In Blacklock v. Small, 127 U. S. 96, 8 Sup. Ct. 1096, 32 L. Ed. 70, the case involved a somewhat different question.

The plaintiffs were two of three beneficiaries, and brought suit against 1he obligor in a bond assigned to their trustee, against the trustee himself and the other beneficiary, to set aside the payment of the bond, which had been made in treasury notes of the Confedérale Slates, of no value. The trustee was charged with a breach of trust in accepting such payment. The benefi-ciar}' who was made defendant, by her answer ranged herself with the plaintiffs, and prayed the same relief.

It was held that she should be classed with the plaintiffs, and, as she was a citizen of the same state as the obligor in the bond, the court had no jurisdiction. The trustee was not suing. The beneficiaries were themselves the actors seeking direct relief, and it was therefore their citizenship which was to be considered in determining the jurisdiction of the controversy as between the parties before the court. In the case of Stewart v. Railroad Co., 168 U. S. 449, 18 Sup. Ct. 105, 42 L.

Ed. 537, much relied on for the plaintiff in error, the deceased was killed by the negligence of the railroad company in the state of Maryland. The statute of that state required that the action should be brought in the name of the state. The action was brought in the District of Columbia, in the name of an administrator appointed there, the law of the District requiring that such an action should be so- brought.

The supreme court of the United States held that the action being transitory, and under the law of both jurisdictions, the plaintiff in whose name the suit was required to be brought being a merely nominal one, the action might be maintained.

It will be noticed that the statute of the district required the action to be brought “in the name of the personal representative.” The short explanation of the case is that, as both statutes required the action to be brought in the name of a formal party, the action was regarded as that of the beneficiaries, and the employment of the name of the administrator was simply conforming to the law of the forum in respect to the mode of procedure.

The statutes in the several states providing a remedy for the benefit of the family or next of kin of the deceased who dies from the wrongiul act of another differ in the mode by which it is accomplished, and this difference greatly affects the subject we are consul-ering. In some a remedy is given directly to the beneficiaries. Such is the law of Tennessee, which was involved in the case of Railway Co. v. Hooper, 35 C. C. A. 24, 92 Fed. 820, which came to this court from that state. There either the administrator or the beneficiaries may sue.

In others the right of action is devolved upon his personal representative.

It is true that the recovery is not turned over to creditors, but that is a matter which relates merely to the administration of the fund, and the legislature which creates the law is perfectly competent to direct in this, as it does with reference to the proper assets of deceased persons, who shall be the beneficiaries; and when this is done by vesting the right of action in the personal representative he takes it for administration in the general meaning of the word as much as when he takes other property to collect and distribute to those designated by law.

It is included in the duties of his appointment, and he is responsible for the fund. The Indiana statute provides that the administrator may maintain an action if the deceased, had he lived, might have maintained an action for the same cause. The damages, when collected, are distributed to the family or next of kin. It is obvious that the beneficiaries cannot bring the-action. They have only the right to ultimately receive the proceeds when the administrator shall have executed his trust. And this is the

interpretation which the supreme court of Indiana puts upon this statute. Packet Co. v. Pikey, 142 Ind. 304, 40 N. E. 527. It was held in that case that the administrator held the fund when collected as the trustee of an express trust for the benefit of the persons named. In Yelton v. Railroad Co., 134 Ind. 414, 33 N. E. 629, 21 L. R. A. 158, the sole beneficiary had attempted to compromise the liability of the defendant while a suit by the administrator was pending. It was held that she (the widow in that case) had not the power to do this and the court said: “While actions under this

section of the statute are prosecuted for the-benefit of, and the damages inure to the exclusive benefit of, the widow and children of the deceased, yet it contemplates the collection of the damages-by the administrate]’, and the turning of the same over to the widow and-children on final settlement.” The statute as thus interpreted creates a trust, and names the trustee.

We are unable to distinguish the case in this "respect from those in which it has been repeatedly held by the federal courts that the-trustee is the legal representative of the beneficiaries, and that his citizenship is the only one to be considered in determining the jurisdiction in respect to that side of the controversy. 4. The authority and jurisdiction of the probate court in Indiana-, from which the administrator derived his appointment, is disputed, it being contended that Sweetman was not an inhabitant of Indiana,, and left no assets there.

And it is further insisted in this connection that the court below erred in excluding evidence tending to-show these facts. We will deal with this last objection first. It is-sufficient to say that this question is not presented by the record. It appears that, on a question being put to a witness in regard to-the situs of certain personal effects of the deceased by counsel for the railroad company, objection was made that the appointment of the administrator could not be thus collaterally attacked.

The counsel who put the question thereupon expressly disclaimed the purpose of attacking the appointment made by the court of probate, and stated his purpose to be to show that the claim for which the suit was brought was the whole of the estate, and that his purpose-in doing this was to prove that the circuit court in which the case was being tried was without jurisdiction. There is nothing whatever in the record to show that the defendant below raised any question of the validity of the appointment so far as it related to existence of assets in Indiana.

Then, as to the point that Sweetman was not an inhabitant of Indiana, the question raised relates to the effect of the record of the proceedings in the court of probate. The statute of Indianá (Burns’ Rev.

St. 1894, § 2381) relating to the granting of letters of administration provides that “such letters shall be granted in tlie county; first, where, at his death, the intestate was an inhabitant; second, where, not being an inhabitant, he leaves assets.” The record of the court of probate shows that a verified petition praying for the appointment of Thiebaud as administrator was filed in that court, showing that the deceased died in Fayette county, Ind., leaving a personal estate of the probable value of $100, and that his widow and next of kin were not residents of that state.

It further states that the petition was granted; that Thiebaud was appointed administrator; that he filed a proper bond as such, which was approved;' that he took the oath of office, and that letters of administration were issued to him. , Conceding that it inierentially appears from this and other recitals in the record that the court of probate assumed that Sweetman was an inhabitant of Fayette county, Ind., at the time of his death, and conceding also that he was not, but was an inhabitant of Ohio, still the petition, which was verified, and not disputed, showed that he left assets in the county, and that was sufficient whether he was an inhabitant of the county and state or not.

If the court was in error in assuming one of the conditions to an appointment to exist, still, if other conditions existed, which, independently of the first, authorized the appointment, they would constitute a sufficient basis for the order. But there is not in the record anything which shows with positiveness that the letters were granted upon the assumption that Sweetman was such inhabitant of Indiana.

All that we find upon that subject on which to base an inference that the court based the appointment upon the ground that the deceased was an inhabitant of Indiana is that he is described in the probate record as “Chris Sweetman, late of Fay-ette county.” We perceive no sufficient reason for doubting that the appointment was valid.

The question whether it was competent for the defendant in the court below to have proven that the conditions were such that the court of probate had no authority at all to appoint an administrator is, as we have said, not presented for our decision, and we therefore express no opinion upon it. 5. It is further contended that Thiebaud, having been appointed administrator in Indiana only, cannot maintain this action in Ohio. This would undoubtedly have been so at the common law. Story, Confl. Laws, 513; Johnson v. Powers, 139 U. S. 156, 11 Sup. St. 525, 35 L. Ed. 112.

But the Revised Statutes of Ohio contain the following provisions: “Sec. 6133. An executor or administrator duly appointed in any state or county may commence and prosecute any action or proceeding in any court in tliis state in his capacity of executor or administrator, in like manner and under like restriction as a nonresident may be permitted to sue.” “Sec. 6134a.

Whenever death has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state in all cases Where such other state, territory or foreign country allows the enforcement in its courts of the statute of this state of a like character,” etc. The state of Indiana gives such right of action as is mentioned in

section 6134a of the Ohio Statutes, as is shown by the cases of Burns v. Railroad Co., 113 Ind. 169, 15 N. E. 230, and Railroad Co. v. McMullen, 117 Ind. 439, 20 N. E. 287, 10 Am. St. Rep. 67. This removes all objection which may have existed upon the ground of the public policy of Ohio:

Section 6133 of the Ohio Statutes in very broad terms concedes to foreign administrators the right to prosecute “any action or proceeding” in the courts of the state in like manner “as any nonresident may be permitted to sue.” The ground upon which it is proposed to restrict this privilege is that the intention was to accord it only to. such action or proceeding as the administrator institutes for recovering the assets of' the deceased. But, as we have already stated, under the Indiana statutes the plaintiff sues as administrator under a right of action vested in him as such.

It seems to us that the statute of Ohio extends to all cases where the administrator is the actor, and sues for that which, in his official capacity, he is entitled to recover. It does not discriminate between the matters which, by the foreign law, may be intrusted to him by virtue of his office, provided the exercise of the privilege is -not inconsistent with the interests of the public in the state of Ohio. ■The only restriction mentioned by the statute is that which is imposed upon any nonresident.

We think there is no valid reason for excluding such an action as this upon the fact that the fund, after it comes to the hand of the administrator, is distributed to other persons than those to whom by another statute of Indiana the assets of the deceased are distributable. The case of Transfer Co v. Wilson’s Adm’r, 16 U. S. App. 236, 8 C. C. A. 21, 59 Fed. 91, decided by this court, and cited for the plaintiff, is not opposed to this conclusion.

It was there held that a foreign administrator could not sue in the courts of Kentucky to recover damages for a death occasioned by the fault of another under a statute of that state which authorized such administrator to “prosecute actions for the recover}'- of debts due to such decedents.” The restriction was expressly made in the very terms of the grant of the privilege without which the foreign administrator could not sue in Kentucky. In no sense could such damages be called debts due the decedent. The dissimilarity between the Kentucky and Ohio statutes is obvious.

For the reasons stated, we are convinced that none of the assignments of error are maintainable, and that the judgment should be affirmed.