Opinion
Wrongful death action by Wilma Finne, individually and as administratrix of the goods, chattels and credits of Henry Finne, deceased, and as guardian ad litem of Wilma Margaret Finne, and others, infants, against the Koninklijke Luchtvaart Maatschappij N. V. also known as Royal Dutch Airlines, arising out of an airplane accident in Scotland. Defendant filed a motion to strike the first cause of action for failure to plead the foreign law. The District Court, Samuel H. Kaufman, J., held that whether plaintiff could bring action as administratrix depended upon the law of Scotland where the alleged wrong took place, and the foreign law had to be pleaded.
Motion granted with leave to plaintiff to amend.
Jacobson, Feingold & Falussy, New York City (Alfred Feingold, New York City, of counsel), for plaintiffs.
Condon & Forsyth, New York City (John H. Montgomery, Jr. and Austin P.
Magner, New York City, of counsel), for defendant.
S. H. KAUFMAN, District Judge.
This is a motion for an order striking the first cause of action alleged in the amended complaint for failure to plead the foreign law on which plaintiff's right to recover is based.
The complaint sets forth five causes of action for wrongful death resulting from an airplane accident at Prestwick Airport, Scotland. The first is brought by plaintiff as administratrix of decedent's estate. The second is brought by plaintiff in her individual capacity as decedent's widow. The remaining three are brought by plaintiff as guardian ad litem on behalf of decedent's three children. In all but the first cause of action it is alleged that under the law of Scotland plaintiff has a cause of action against defendant.
The parties agree that whether or not plaintiff can bring an action as administratrix depends upon the law of the place of the alleged wrong— i. e., Scotland. Since this is foreign law, it must be pleaded. Empresa Agricola Chicama Ltda. v. Amtorg Trading Corp., D.C.S.D.N.Y.1944, 57 F.Supp. 649; see Rowan v. C. I. R., 5 Cir., 1941, 120 F.2d 515, 516; United States v. National City Bank of New York, D.C.S.D.N.Y.1946, 7 F.R.D. 241, 243; 1 Barron and Holtzoff, Federal Practice and Procedure § 253; 2 Moore, Federal Practice 1667 (2d ed. 1948).
Because of uncertainty as to whether under the law of Scotland the cause of action vests in the administratrix or in the widow and children, plaintiff urges that the motion should be denied without prejudice to renewal at the trial at the close of all the proof. Evidently plaintiff thinks she is now being called on to make an election as to the nature of the law of Scotland, and she fears that all recovery will be barred if the wrong choice is made. Such fears are groundless. Under Rule 8(e), Fed.Rules Civ.Proc., 28 U.S.C.A., claims can be made in the alternative and without regard to consistency. If there is any reason to believe that the cause of action vests in the administratrix under the law of Scotland, plaintiff is not barred from so stating.
Motion granted with leave to plaintiff to amend within twenty days after notice of entry of an order herein. Settle order on notice.