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Davis v. Smith

decided.: March 17, 1958.

JAMES W. DAVIS, A MINOR BY SUE G. DAVIS, HIS GUARDIAN, AND SUE G. DAVIS, IN HER OWN RIGHT,
v.
RALPH W. SMITH, ADMINISTRATOR C.T.A. OF THE ESTATE OF GEORGE MASLIN DAVIS, DECEASED, DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLANT, SHANER C. HALDEMAN, THIRD PARTY DEFENDANT.



Author: Staley

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

STALEY, Circuit Judge.

The principal question presented in this appeal is whether the doctrine of intrafamily immunity in Pennsylvania prevents a negligence action by an unemancipated minor against the estate of his deceased father.

George Maslin Davis was driving his automobile on a country road in Chester County, Pennsylvania, on June 10, 1952. His minor son, James W. Davis, was a passenger in the car with him. The Davis car collided with a truck operated by Shaner C. Haldeman. The accident resulted in the death of George Davis and serious injuries to his son James.

Ralph W. Smith, a resident of Delaware, was appointed administrator c.t.a. of the estate of the deceased George Maslin Davis by the Register of Wills of Chester County. By written designation, administrator Smith appointed Carl E. Guether as his agent within Pennsylvania to accept service of process in matters involving the estate.

Three civil actions were instituted in the district court as a result of the collision. The instant appeal is taken from the judgments in Civil Action No. 16960. This suit was commenced by James W. Davis, a minor, by his mother Sue G. Davis as his guardian, and by Sue G. Davis in her own right against Ralph W. Smith, administrator of the estate of the deceased father, George Maslin Davis. The administrator joined Shaner C. Haldeman, the driver of the truck involved in the accident, as third party defendant.

The second action, brought at No. 16,901, was a suit by the same plaintiffs, the minor and his mother, against Shaner C. Haldeman. Haldeman thereupon joined Smith, the administrator of the Davis estate, as third party defendant. A third action, at No. 15,355, was brought by Smith as administrator against Shaner C. Haldeman as defendant.

During the course of the pleadings, defendant administrator in No. 16,960 moved to dismiss the complaint as failing to state a cause of action because of the Pennsylvania intrafamily immunity doctrine, asserting in addition the defense of improper venue. The motion was denied. D.C.E.D.Pa.1954, 126 F.Supp. 497.

The district court, upon plaintiffs' motion, consolidated for trial the principal actions in Nos. 16,901 and 16,960; that is, the actions of the minor and his mother against Shaner C. Haldeman and against the estate of the deceased father. The third party actions in these suits, Haldeman against the estate and the estate against Haldeman, were severed for later trial with Civil Action No. 15,355, the separate suit brought by the estate against Haldeman.

Trial of the principal suits in the district court resulted in a directed verdict in favor of defendant Haldeman in 16,901, and a verdict in 16,960 for the plaintiffs and against the estate of George Maslin Davis in the sum of $87,037.70.Of this amount, $83,000 was awarded to James W. Davis, with the remainder to the mother for expenses incurred incident to her son's injuries. Judgment was entered on this verdict at 16,960 on December 13, 1956.

The action at No. 15,355 was dismissed by stipulation, leaving as the only question for the subsequent trial the third party action in 16,960, the estate against Haldeman. Trial resulted in a jury verdict in favor of defendant Haldeman. Judgment was entered on that verdict on March 14, 1957. Motion for a new trial was denied on April 26, 1957. Notice of appeal to this court was filed by the administrator of the estate in the district court on May 23, 1957.

Therefore, we have before us both judgments in 16,960; the judgment against the estate and in favor of the plaintiffs in the principal action in the amount of $87,037.70, and the judgment in the third party action against the third party plaintiff estate and in favor of the third party defendant Haldeman. Appeal from the former judgment was properly followed by a complete brief of the argument on the questions presented there. In the appeal from the latter judgment in favor of third party defendant Haldeman, however, appellant estate took no further steps after the filing of the notice of appeal on May 23, 1957. Its brief is completely devoid of the questions involved in that third party action, and contains no arguments directed to it. The appendix to appellant's brief prints as the judgment appealed from only that judgment in the principal action and not the judgment rendered March 14, 1957, in the third party action.

In view of the fact that appellant, without proffering any reason for its action, took no steps to secure review of the judgment in favor of Shaner C. Haldeman in the third party action, the appeal from that judgment will be dismissed. Rules of Civil Procedure, Rule 73(a), 28 U.S.C.

In its appeal from the judgment in the principal action, the estate raises initially the question of whether the administrator, a resident of Delaware, waived his right to invoke the federal venue privilege by appointing an agent within Pennsylvania to accept service of process on behalf of the estate. It is argued that the written designation of the agent was made under a mistaken understanding that it was required by the law of Pennsylvania. It should be noted that at the time ...


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