Bentley v. Halliburton Oil Well Cementing Co.

• Decision Date: 20 May 1949
• Docket Number: No. 12605.,12605.
• Citation: 174 F.2d 788
• Parties: BENTLEY v. HALLIBURTON OIL WELL CEMENTING CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

174 F.2d 788 (1949)

BENTLEY v. HALLIBURTON OIL WELL CEMENTING CO. et al.

No. 12605.

United States Court of Appeals Fifth Circuit.

May 20, 1949.

Albert P. Jones, Houston, Texas, for appellant.

William R. Brown, Houston, Texas, Jno. C. Williams, Houston, Texas, Thad Grundy, Houston, Texas, for appellees.

Before HUTCHESON, SIBLEY and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

This is an action for damages for personal injuries to appellant, a citizen of Texas, who seeks a joint or joint and several judgment against the two appellees, one of which is a Texas and the other a Delaware corporation. The action originated in a state court of Texas, having been filed therein on August 24, 1948. By petition of the non-resident defendant, filed in the court below on September 13, 1948, the suit was removed to the federal court under the provisions of the new Judicial Code, which became effective September 1, 1948.¹ The appellant's motion to remand having been overruled, as well as his motion to dismiss his complaint without prejudice, he declined to proceed further with the prosecution of his suit, which resulted in a final judgment against him with prejudice. Notice of appeal was timely given, and the cause is now here for review.

The wrong and injury asserted by appellant occurred in Texas and the substantive law as to the liability of the alleged joint tort-feasors is governed by the law of that state, under which the liability of one is equal to the liability of all the others. Each is liable for the whole tort and every part of it. The injured party may sue all jointly or any number less than all; or he may sue each one separately, until full satisfaction for the injury has been obtained. This is true where the negligence of one or more persons concurred in committing the injury, although there was no common design or concerted action among the wrongdoers. They are all jointly and severally liable for all damages resulting from a single injury.²

The removal jurisdiction of the United States district courts is broader in some cases and narrower in others than its original jurisdiction; for instance, it is broader in actions under Section 1441(c) and narrower in actions under Section 1445 (a) of said Title 28. The real question, then, on this appeal is whether the court below acquired jurisdiction of this suit upon its removal under said Section 1441(c). In other words, did the court below err in overruling appellant's motion to remand the cause to the state court? In the absence of a fraudulent joinder, which is not asserted here, this question turns upon the well-pleaded facts alleged in the complaint, which are substantially as follows:

On the morning of February 13, 1948, the appellant was riding as a passenger on a bus of the appellee Houston Transit Company. At the same time, a truck of appellee Halliburton Oil Well Cementing Company was negligently approaching from the rear of said bus. The truck driver negligently failed to observe the presence of the bus, and crashed into the rear of the same with great force and violence, causing serious bodily injuries to the appellant. Separate and specific acts of negligence on the part of both drivers were alleged. The negligence of each was alleged to be a proximate cause of the injury, and the collision was alleged to have resulted from the negligence of the truck driver and the bus driver in causing the two vehicles to collide. Although the word concurrent was not used in describing the appellee's acts of negligence, it is apparent from the other facts stated in the complaint that the tort resulted directly and proximately from their concurrent negligence. The collision could not have happened without the two vehicles attempting to occupy the same space at the same time; and, when it was alleged that it did happen as a result of the separate acts of negligence of the respective drivers, it followed as a necessary inference of fact that the injury was caused by the concurrent negligence of the appellees. While good pleading may have warranted the alleging of concurrent negligence as an ultimate fact, the absence of such an allegation was not material, since the facts actually alleged constituted the only evidence necessary to prove concurrent negligence as the proximate cause of the injury.

Under the Judiciary Act of 1789, 1 Stat. 73, 79, the grounds of removal were alienage, diversity of citizenship, and claim of right or title to land in litigation under a grant from another state. No right of removal was given where a non-resident was joined as a co-party with a citizen. The pertinent provisions of this act remained in effect without revision or amendment for 77 years. The act of July 27, 1866, 14 Stat. 306, brought into being the right of one or more defendants to remove cases on the now familiar ground of a separable controversy. The act of March 2, 1867, 14 Stat. 558, followed, with the idea of extending further the scope of such jurisdiction; but it was not until the act of March 3, 1875, 18 Stat. 470, that a special category, the controversy within a suit, was introduced into the federal removal statute for the benefit of all non-resident defendants. Then the act of March 3, 1887, 24 Stat. 552, repealed all former acts relating to removal, and provided that, when there should be a controversy in any suit within its provisions which was wholly between citizens of different states, and which could be fully determined as between them, then either one or more of the defendants actually interested therein might remove the entire suit to the federal court. The act of August 13, 1888, 25 Stat. 433, was a correction and reenactment of the act of 1887. These acts were expressly repealed by Section 297 of the Judicial Code of 1911, and were reenacted in all substantial provisions as Section 28 of said code.³ The provision therein with reference to separable controversies remained in effect without change until September 1, 1948, when Chapter 89, new Title 28, of the United States Code Annotated became effective.

Under the act of 1789, unless all of the defendants were citizens of states different from all of the plaintiffs, the suit was not removable even though it contained separable controversies and separate causes of action against citizens of other states. The doctrine of fraudulent joinder had its inception in the courts, and originally was a judicial pronouncement intended to protect non-resident defendants from any misstatement of fact or misjoinder of parties or causes of action knowingly made by plaintiffs for the purpose of conferring jurisdiction upon or defeating removal to a federal court. In the absence of a fraudulent joinder, the course of removal legislation was this: The whole suit remained in the state court from 1789 to 1866, though it contained separate and separable controversies or causes of action; from 1866 to 1875, the suit was split into two parts, with one part left in the state court and the other removed to the federal court; from 1875 to Sept. 1, 1948, if a separable controversy appeared from the plaintiff's pleadings, the entire suit was removed to the federal court, which determined all questions of joinder, non-joinder, misjoinder, or multifariousness, and all issues of fact; and the court was required to dismiss or remand in whole or in part as justice required.⁴

Under the new Judicial Code, separable controversies were abolished, as a distinct ground of federal removal jurisdiction, and Section 1441(c) of said code was substituted in lieu thereof. The separable controversy was uprooted, but the soil in which it flourished remains. The difference between the two concepts is one of degree, not of kind; and the basic principles are as applicable now as they were under prior statutes. We are still governed by the local law as to the plaintiff's substantive right and the joint or several character of his claim. The federal authorities are still potent to the effect that the plaintiff has the right to select the forum; to elect whether to sue joint tort-feasors jointly or separately; and to prosecute his own suit in his own way to a final determination. They are also potent to the effect that, if the complaint is filed in good faith, the cause of action, for the purpose of removal, is deemed to be that which the plaintiff has undertaken to make it; that the defendant cannot make separate a cause of action which the plaintiff has elected to make joint; and the same is true as to all other questions with respect to federal jurisdiction and the statutory remedy of removal.

That a separate defense...