Summary
In Del Valle Rodriguez v. Wheeler, 16 F.R.D. 103, U.S.D.C., S.D.Tex., 1954, my predecessor, Judge Allred, held that Art. 4675 allows the wrongful death action to be brought by any person within the class described for the benefit of all, and that Rule 17(a), Federal Rules of Civil Procedure, permits a party authorized by statute to sue in his own name without joining the party for whose benefit the action is brought.
Summary of this case from Rivera v. ChapaOpinion
Action wherein defendant moved to dismiss on ground that there was not complete diversity of citizenship. The District Court, Allred, J., held that in view of Texas statute, providing that death action may be brought by surviving spouse, parents, children, ‘ or by either of them for the benefit of all’, and federal rule, permitting party authorized by statute to sue in his own name without joining with party for whose benefit action is brought, action brought by widow, a Mexican citizen, against Texas residents for wrongful death of plaintiff's husband would not be dismissed for lack of requisite diversity, even though two of minor children on behalf of whom widow sued were citizens of Texas.
Motion overruled.
Johnson, Phillips, Hester, Jenkins & Lewis, Harlingen, Tex., for plaintiff.
Cox, Wagner, Adams & Wilson, Brownsville, Tex., for defendants.
ALLRED, District Judge.
Action for damages in the sum of $25,775.65 by plaintiff, a citizen of Mexico, against defendants, resident citizens of Texas, arising out of the death of plaintiff's husband in an automobile collision. ‘ Plaintiff brings this action for the benefit of all persons entitled to damages for the death of the said Guadalupe del Valle Rodriguez.’ The pleadings disclose that the deceased was survived by plaintiff, his wife, and by three children. One was born in Mexico, the other two in Texas. Also surviving were Rodriguez's parents, citizens of Mexico who have disclaimed.
Defendant moves to dismiss on the ground that there is not complete diversity of citizenship since two of the minor children are citizens of Texas. Plaintiff has filed a brief but defendants have not favored the court with a brief in support of their motion.
Rule 17(a), of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that every action shall be prosecuted in the name of the real party in interest, but a party authorized by statute may sue in his own name without joining with the party for whose benefit the action is brought . Article 4675 of Vernon's Texas Civil Statutes provides that actions for damages arising from death may be brought by the surviving husband, wife, children and parents, ‘ or by either of them for the benefit of all.’ This right of any of the survivors to bring the action for the benefit, even without the consent, of all has been upheld by the Texas Supreme Court, Dennis v. Gulf, C. & S. F. Ry. Co., 148 Tex. 387, 224 S.W.2d 704.
Defendants' motion to dismiss is overruled. The Clerk will notify counsel.