Alexander v. Jones

• Decision Date: 19 October 1939
• Docket Number: No. 123.,123.
• Citation: 29 F. Supp. 690
• Parties: ALEXANDER v. JONES et al.
• Court: U.S. District Court — Eastern District of Oklahoma

29 F. Supp. 690

ALEXANDER v. JONES et al.

No. 123.

District Court, E. D. Oklahoma.

October 19, 1939.

Bohanon & Adams, of Oklahoma City, Okl., for plaintiff.

Ray S. Fellows, Charles R. Fellows, Ramsey, Martin & Logan, Donald Campbell, Victor C. Mieher, R. Y. Stevenson, and Harry D. Page, all of Tulsa, Okl., for defendants.

RICE, District Judge.

Plaintiff is a resident of Oklahoma. Two of the defendants are non-resident corporations and one is a domestic corporation. In his petition filed in the state court plaintiff designates two separate causes of action. In the first he seeks a joint recovery against the three defendants in the sum of $65,500. The allegations are that the three defendants were the owners and operators of a certain oil and gas lease. Plaintiff's injury occurred in the operation of a power driven pump used in connection with the operation of the lease. The negligence charged against the defendants is that they failed to use proper precautions and safeguards for the protection of persons in the use and operation of the pump. He seeks in the first cause of action $40,000 for loss of his left hand, $15,000 embarrassment, humiliation, etc., $10,000 for pain and suffering, and $500 for hospital and medical expenses, or a total of $65,500. In his second cause of action plaintiff relies upon the same negligence as is mentioned in his first cause of action, but makes the further allegation that the negligence of the defendants and each of them was gross and evidenced a reckless disregard for life and amounted to wanton and malicious recklessness. He then prays for punitive or exemplary damages in the sum of $25,000 against the defendants and each of them.

The two non-resident corporation defendants filed petition for removal to this court on the sole ground that the alleged cause of action for punitive or exemplary damages is a separable controversy. They admit that the cause of action for actual damages is joint and not removable, but they contend that the nature of punitive damages is such that there can be no joint liability in the absence of allegations of a conspiracy to willfully and maliciously injure. It is necessary, therefore, to consider the nature of the alleged cause of action for punitive damages and its relation to the cause of action for actual damages.

In Oklahoma the right to exemplary or punitive damages is allowed by statute as follows: "In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant." Sec. 9962, O.S.1931, Title 23 Okl.St.Ann. § 9. Under this statute the Oklahoma Supreme Court permits punitive damages for gross negligence amounting to a reckless disregard of another's rights. Firebaugh v. Gunther, 106 Okl. 131, 233 P. 460; Aaronson v. Peyton, 110 Okl. 114, 236 P. 586.

The Supreme Court of Oklahoma follows the general rule that in the absence of a recovery for actual damages no recovery for exemplary damages is allowed. Lilly v. St. Louis & S. F. R. Co., 31 Okl. 521, 122 P. 502, 39 L.R.A.,N.S., 663; Western Union Tel. Co. v. Garrett, 59 Okl. 50, 158 P. 619.

Exemplary or punitive damages need not be pleaded as a separate cause of action but may be recovered under the general claim for damages when the proof warrants. Acton v. Culbertson, 38 Okl. 280, 132 P. 812. This is also the general rule. 17 C.J. 1005, § 309.

The three defendants are corporations and must, therefore, act through agents. In Oklahoma the master is liable in punitive damages for the act of servants the same as for actual damages, and it is not necessary that the master participate in the wrong or ratify the conduct of the servant or agent. Holmes v. Chadwell, 169 Okl. 191, 36 P.2d 499; Schuman et al. v. Chatman, 184 Okl. 224, 86 P.2d 615.

Before there is a separable controversy, as that term is understood, "There must exist in the suit a separate and distinct cause of action, on which a separate and distinct suit properly might have been brought, and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other." Fraser v. Jennison, 106 U.S. 191, 1 S.Ct. 171, 174, 27 L.Ed. 131. The controversy referred to in the above quotation must be more than a mere collateral or incidental dispute between the parties. City of Bellaire v. Baltimore & Ohio R. Co., 146 U.S. 117, 13 S.Ct. 16, 36 L.Ed. 910; Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed. 528.

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