Adams v. Tolerton

• Decision Date: 18 November 1927
• Docket Number: No. 500.,500.
• Parties: ADAMS v. TOLERTON et al.
• Court: U.S. District Court — Northern District of Oklahoma

22 F.2d 863 (1927)

ADAMS v. TOLERTON et al.

No. 500.

District Court, N. D. Oklahoma.

November 18, 1927.

West, Gibson, Sherman, Davidson & Hull, of Tulsa, Okl., for plaintiff.

Stuart, Coakley & Doerner, of Tulsa, Okl., for defendant Tolerton.

H. O. Bland, of Tulsa, Okl., for defendant city of Tulsa.

KENNAMER, District Judge.

This is a personal injury action, commenced jointly against the defendants Tolerton and the city of Tulsa, to recover for injuries alleged to have been received by the plaintiff when she stepped into an excavation in front of the defendant Tolerton's property on the parking between the sidewalk and the street in the city of Tulsa. The excavation was made by the defendant city in grading the street according to the allegations of the plaintiff's petition.

Tolerton removed the case to this court as a citizen of Missouri, upon the ground that there is a separable controversy between him and the plaintiff, disconnected in law and fact from the controversy between the plaintiff Adams and the city of Tulsa.

In the oral presentation of the motion to remand, plaintiff's counsel cited the following authorities to sustain the contention that the injury was the result of the concurring negligence of the defendants: St. L. & S. F. Ry. Co. v. Ray, 65 Okl. 214, 165 P. 129, L. R. A. 1918A, 843; Miami v. Finley, 112 Okl. 97, 240 P. 317; City of Picher v. Barrett, 120 Okl. 66, 249 P. 739; Armstrong v. Tulsa, 102 Okl. 49, 226 P. 561; City of Hugo v. Nance, 39 Okl. 640, 135 P. 347; City of Newport v. Schmit, 191 Ky. 585, 231 S. W. 54; Drew v. Town of Sutton, 55 Vt. 586, 45 Am. Rep. 644; Bellevue Gas & Oil Co. v. Carr, 61 Okl. 290, 161 P. 203.

Upon a careful examination of these authorities I am convinced, according to the allegations of the plaintiff's petition, that the city only is liable for the alleged defects in the sidewalk or parking in front of the defendant Tolerton's property, and the cases supra do not sustain the contention made by counsel for the plaintiff. The general rule is that no common-law duty rests on the owner or occupant of premises abutting on a public street to keep the sidewalk in repair. Cummings v. Henninger, 28 Ariz. 207, 236 P. 701, 41 A. L. R. 207, annotated at page 212.

The decisive weight of authority is to the effect that statutes or ordinances requiring abutting owners to construct or maintain or repair sidewalks adjoining their premises, such work to be done by the municipality at the expense of the abutting owners in case of their failure to construct or repair, impose no liability upon such owners for injuries by reason of a defective walk. Cummings v. Henninger, supra, page 217.

The question here presented is where the plaintiff's petition fails to state sufficient facts in law to constitute a cause of action against the removing nonresident defendant, is the case removable because of separable controversy? In the case of Hax et al. v. Caspar (C. C.) 31 F. 499, Judge Brewer said:

"The removal of a cause from a state to the federal court does not depend upon the question of what issue remains to be tried, but must be determined by the nature of the cause of action presented in the complaint. If there be but one, involving many defendants,...