Kalodner, Staley and Freedman, Circuit Judges.
In this wrongful death and survival action, plaintiff, the administratrix of the estate of a decedent who was killed in an automobile accident, seeks on two grounds to overthrow the jury's verdict against her. Both contentions have a seeming logic but are based on an ingenuous literalness which requires their rejection.
Plaintiff's counsel said to the jury in the course of his reply summation: "The Court will tell you that negligence on the part of the plaintiff, no matter how slight, will bar recovery. However, you, as jurors, have a right to compromise --." On defendant's objection, a sidebar discussion followed, in the course of which plaintiff's counsel contended that he should be permitted to tell the jurors that although the rule of law in Pennsylvania was that any negligence by the plaintiff, however slight, bars recovery, they nevertheless had a right despite this rule to award a compromise verdict. The trial judge refused to permit this and later instructed the jury on the Pennsylvania law by which contributory negligence, however slight, bars a plaintiff's recovery.*fn1
In the course of its deliberations, the jury sent a note to the court stating: "Certain members of the jury feel that with all the evidence presented we can not give a verdict either way. We feel that both parties are negligent but can not shoulder either party with full guilt." The record does not disclose whether the trial judge made any comment on this note. In any event, the jury continued its deliberations and some time later returned with a unanimous verdict for the defendant, on which judgment was entered. Plaintiff moved for a new trial, assigning as the sole ground the trial judge's refusal to permit counsel's argument to the jury regarding compromise verdicts.
While the motion for new trial was pending our decisions in McSparran v. Weist, 402 F.2d 867 (3 Cir.1968) and Esposito v. Emery, 402 F.2d 878 (3 Cir.1968) were announced. Plaintiff thereupon filed a motion to dismiss the action on the ground that her appointment as administratrix was solely to "manufacture" a diverse citizenship for the purpose of bringing the action in the federal court and that the pending case, therefore, should be dismissed for want of jurisdiction.
The district court denied both motions and from its order plaintiff has taken this appeal.
Plaintiff would have us ignore the jury's verdict and the judgment which decided the wrongful death and survival claims against her on the merits, and thus afford her the opportunity to try afresh in the state courts the survival claim which is not barred by the statute of limitations.*fn2 To justify this disregard of the judgment against her on the merits she points to a phrase in our language in McSparran dealing with its retrospective effect. We there declared that the new rule barring "manufactured" diversity was to be generally prospective, saying:
"We recognize that many actions are now pending in the courts of this circuit in reliance on our earlier decisions. In many of these actions the statute of limitations may already bar the institution of new suits in the state courts, although in some of them protective state court actions may have been filed. To apply the rule we have here announced to all pending and future actions indiscriminately would work great hardship on those who have relied on our prior recognition of artificial diversity jurisdiction. It is therefore appropriate to declare the new rule to be prospective." (402 F.2d at 876-877.)
We went on to permit a limited retrospective application of the rule, saying:
"In cases involving causes of action which arose prior to [the date of the filing of our opinion], including cases now pending, a district court shall apply the new rule against artificially created diversity, either on motion of a party or sua sponte, if it is conceded by the parties or the court finds as a fact that diversity was artificially created, but only where the court finds that in the circumstances of the particular case there is ample time and opportunity for the plaintiff to institute a new action in the ...