Crum v. Appalachian Electric Power Co.

• Court: U.S. District Court — Southern District of West Virginia
• Writing for the Court: N. D. Waugh and Mark T. Valentine, both of Logan, W. Va., for Appalachian Electric Power Co
• Citation: Crum v. Appalachian Electric Power Co., 27 F.Supp. 138 (S.D. W.Va. 1939)
• Decision Date: 03 April 1939
• Docket Number: No. 15.,15.
• Parties: CRUM v. APPALACHIAN ELECTRIC POWER CO. et al.

27 F. Supp. 138

CRUM v. APPALACHIAN ELECTRIC POWER CO. et al.

No. 15.

District Court, S. D. West Virginia, at Huntington.

April 3, 1939.

E. A. Marshall, of Huntington, W. Va. (Fitzpatrick, Brown & Davis, of Huntington, W. Va., on the brief), for Winisle Coal Co.

N. D. Waugh and Mark T. Valentine, both of Logan, W. Va., for Appalachian Electric Power Co.

R. H. Casto, of Logan, W. Va., for Crum.

McCLINTIC, District Judge.

Plaintiff brought suit in the Circuit Court of the County of Logan, in the Southern District of West Virginia, against the Appalachian Electric Power Company for damages for the death of Jack Crum, alleging negligence on the part of the defendant. The defendant, Power Company, by reason of diversity of citizenship (it being a corporation of the State of Virginia), removed the case to the District Court of the United States.

Then the defendant and third-party plaintiff, Power Company, before the service of its answer, moved ex parte for leave as third-party plaintiff to serve a summons and complaint upon the Winisle Coal Company, not a party to the original action, which was or may be liable to it or to the plaintiff for all or part of the plaintiff's claim against it.

The third-party defendant was duly served with the process and complaint, and it appeared and moved to dismiss the action against it on the ground that it, the Winisle Coal Company, was a citizen of the State of West Virginia, of which also the plaintiff was a citizen, and that there was no diversity of citizenship that would permit it to be made the third-party defendant.

The Winisle Coal Company claimed that under Rule 8 and under Rule 82 of the new Federal Court Rules, 28 U.S.C.A. following section 723c, there was no jurisdiction in this court to entertain a claim in this action against it. The Power Company claimed that under Rule 14 it was not required that the third-party defendant be a citizen of another state from the plaintiff; that the controversy primarily, as to liability for the death of Jack Crum, lay between the Power Company and the Coal Company, although it was admitted that if the plaintiff should recover judgment against the defendants, the judgment would be against both the Power Company and the Coal Company. The allegations of the third-party plaintiff complaint were to the effect that the Power Company was not negligent and that the Coal Company was negligent, and its negligence was the primary cause of the death of the decedent, Jack Crum.

The Power Company has wires running into the property of the Coal Company and furnishes power to the Coal Company for its use under the conditions of a contract between them. It further alleged that the Coal Company hired a boy fifteen years old, contrary to the statutes of the State of West Virginia, Code W.Va.1931, 21-6-2, and with full control over him put him in a dangerous place, and that his death was caused by the act of the Coal Company.

The question for consideration is whether the motion of the Coal Company to dismiss should be sustained or overruled.

Without going into a long discussion of the case, I can only say that the question arising under Rule 14 is a decidedly important one, and will require the final decision of the last court to find exactly what it...