Travelers Indemnity Company et al., Appellants, v. Robert W. Bengtson, Guardian Ad Litem for the Minors Dorothy and Margery Bengtson (dorothy Bengtson and Margery Bengtson, Substituted As Parties Appellees in the Place and Stead of Robert W. Bengtson), Appellees, 231 F.2d 263 (5th Cir. 1956)

William Bengtson's car, driven by him, crashed into the rear end of Avant's truck parked on a Louisiana highway during the nighttime. Bengtson's minor daughters, Dorothy and Margery, who sustained injuries brought suit against the liability insurers¹  of each for recovery of damages for their personal injuries and those occasioned by the death of their mother. Verdict and judgment were for these plaintiffs against both defendants.

The jury having resolved all of the recriminatory charges and countercharges made by each against the Bengtson driver and each other, the two insurers, forgetting their recent differences, now join hands as true allies amid the spoils of their unsuccessful campaign to charge that they have not been legally cast since no suit was in law, ever filed. The basis for this is the fact that the complaint was brought on behalf of the two minors by Robert W. Bengtson, their brother, as guardian ad litem pursuant to an express order of the district judge.

Starting with the inescapable fact that the accident of foreign insurers is all²  that keeps this Louisiana controversy out of Louisiana courts, the insurers argue with at least the claim of consistency that if the suit, as brought, would have failed in the Louisiana court, it must suffer the same fate here.

On this premise they make the unassailable point that in litigation in Louisiana courts under the LSA-Civil Code,³  the Code of Practice,⁴  and its settled jurisprudence,⁵  upon the dissolution of the parents' marriage (here by the mother's death), a minor may not bring a suit, cannot be a party, and the suit must be brought by a tutor⁶  and not by a guardian ad litem.

But it is here that the claim of logical consistency breaks down. For it does not reckon either with the fact of the suit being filed in the Federal Court, or the existence of the Federal Rules of Civil Procedure, 28 U.S.C.A. The situation here meets the precise conditions of the second sentence of FRCP⁷  17(c) since the minor plaintiffs did not have any duly appointed representative. Upon this condition being satisfied the rule provides that the minor, "* * * may sue by his next friend or by a guardian ad litem." This is unconditional, in no way dependent upon the capacity, under the law of the domicile for a party, or under the law of the state in which the district court is held for parties acting in a representative capacity as is expressed in FRCP 17(b), or a similar limitation implied under the first sentence of 17(c) where the action is brought by an appointed guardian, conservator, or similar fiduciary.

The rule itself is specific, and there is nothing about it or the Louisiana Jurisprudence to forbid its natural application. The question of the party by whom the claim must be asserted does not go to the existence of the claim. The right belongs to the minors, not to the tutor. The right which Louisiana creates — to be free from tortious injury to one's person — redress in money for deprivation of that security — belongs to the minor. All that Guaranty Trust Co. of N. Y. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S. Ct. 1233, 93 L. Ed. 1520; Angel v. Bullington, 330 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832, mean in this area is that if the claim — that is the real subject matter of the litigation — would not support recovery in a state court — if in the state court there is no means by which effective relief can be accorded — then it may not in a federal court, and this results whatever label the state jurisprudence may put on the infirmity that is, "procedural" or "substantive."

Louisiana is emphatic, of course, in decreeing that when this right is sought to be enforced in its courts, it will recognize only certain litigants. But this is the regulation of the course of the proceedings, the method by which the right will be judicially recognized. Recovery in the particular case may be denied when such rules are not observed, but the right, as such, is not thereby defeated;⁸  it does not come to an end, nor is it qualified or abridged by local law, Ragan v. Merchants Transfer & Warehouse Co., supra.

This is then a matter within the proper sphere of procedure and calls for the application of the Federal Rules concerning parties. Fallat v. Gouran, 3 Cir., 220 F.2d 325, 328; Montgomery Ward & Co. v. Callahan, 10 Cir., 127 F.2d 32, 36; Gas Service Co. v. Hunt, 10 Cir., 183 F.2d 417; Du Vaul v. Miller, D.C.Mo., 13 F.R.D. 197. Rule 17(c) expressly applies and a suit by guardian ad litem for minor plaintiffs is proper.⁹  Russick v. Hicks, D.C.Mich., 85 F. Supp. 281; Constantine v. Southwestern Louisiana Institute (D.C.La. 3-judge court), 120 F. Supp. 417; Moore's Federal Practice, 2d Ed., § 17.26, pages 1417, 1419. In C. J. Peck Oil Co. v. Diamond, 5 Cir., 204 F.2d 179, 182, we treated this as procedural, 17(c) as permissive not mandatory. The contrary expressions in Board of Supervisors of Louisiana State University, etc. v. Tureaud, 5 Cir., 226 F.2d 714, 719, fell with that decision when by the per curiam opinion January 6, 1956, 228 F.2d 895 the Court, sitting en banc, vacated and set aside the decision 226 F.2d 714 and reinstated the earlier decision of August 23, 1955, 225 F.2d 434.

These conclusions are reinforced by subsequent developments. By appropriate motion during the pendency of the appeal, the record shows that one of the minors has become of age, and the other has been judicially emancipated. Mullen v. Gause, 161 La. 461, 109 So. 31, followed Goldsby v. Lowrey, 6 La.App. 450, 451, while dealing with a slightly different situation, foretells, we think, that Louisiana courts would in this case (by Art. 958, note 4, supra, the tutor's authority terminates on this occurrence) permit the substitution, consider it as a ratification of the prior acts of the guardian ad litem, and treat the judgment as valid. This is a recognition, at the very least, that the necessity for suit by the indicated tutor is not, as some language would indicate, a jurisdictional requirement leaving the whole proceeding forever and finally void. Moreover, it is not jurisdictional in the federal sense and were we to remand for the making of proper party plaintiffs, these two persons would be entitled to judgment on the prior verdict, judgment and record, Finn v. American Fire & Casualty Co., 5 Cir., 207 F.2d 113, certiorari denied 347 U.S. 912, 74 S. Ct. 476, 98 L. Ed. 1069. We should hardly be compelled to do such a useless thing, FRCP 61.

On the common front the attack fails. Bengtson's insurer, now alone without ally, makes an orderly retreat to its last and only and single position — an assertion that the court's charge was defective as to Bengtson's duty.

The contention is that the District Judge, in his charge, virtually imposed an absolute duty on Bengtson to be able to stop his vehicle within the distance he could see, which while once the law of Louisiana, Louisiana Power & Light Co. v. Saia, La.App., 173 So. 537, had long since been ameliorated to test conduct on the basis of its reasonable prudence where the sudden blinding effect of oncoming headlights or similar conditions made it difficult or impossible actually to see the presence of the offending vehicle parked where it had no right to be. Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R.A.1917F., 253; Kirk v. United Gas, 185 La. 580, 170 So. 1; Gaiennie v. Co-operative Produce Co., 196 La. 417, 199 So. 377; Dodge v. Bituminous Casualty Corp., 214 La. 1031, 39 So. 2d 720; Buford v. Combs, La.App., 50 So. 2d 469; Piland v. Maryland Casualty Co., D.C., 85 F. Supp. 31, affirmed 5 Cir., 179 F.2d 678; New Amsterdam Casualty Co. v. Ledoux, 5 Cir., 159 F.2d 905; Car & General Insurance Corporation v. Cheshire, 5 Cir., 159 F.2d 985; Atkins v. Halliburton Oil Well Cementing Co., 5 Cir., 196 F.2d 876.

Whether the charge had this meaning, we do not determine for no objection to it was made, FRCP 51. The objection¹⁰  was not that the charge was faulty in respects pointed out, American Fidelity & Casualty Co. v. Drexler, 5 Cir., 220 F.2d 930; Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645, but merely that the court ought to have given a special requested instruction. This brings that specific complaint before us, Lumbermens Mutual Casualty Co. v. Hutchins, 5 Cir., 188 F.2d 214; Green v. Reading Co., 3 Cir., 183 F.2d 716, for review, but it fails either if the charge as given adequately covers the issues, David Bilgore & Co., Inc., v. Ryder, 5 Cir., 211 F.2d 855; Good Holding Co. v. Boswell, 5 Cir., 173 F.2d 395; Lemley v. Christopherson, 5 Cir., 150 F.2d 291; Pasotex Pipe Line Co. v. Murray, 5 Cir., 168 F.2d 661, or the requested charge was itself erroneous, Lumbermens Mutual Casualty Co. v. Hutchins, supra; Chicago G. W. R. Co. v. Robinson, 8 Cir., 101 F.2d 994; cf. Montgomery v. Virginia Stage Lines, 89 U.S.App.D.C. 213, 191 F.2d 770. Requested issue No. 4 falls on the latter score for, attempting to paraphrase too literally argumentative factual excerpts from Louisiana appellate decisions,¹¹  it did not reckon adequately with the unique dual function of those courts to review law and fact, and, on substance, it was virtually an instruction to return a verdict for Bengtson and against the plaintiffs. The requested charge was wrong. The court properly declined to give it.

The judgment is therefore

Affirmed.