Dyer v. Burns, Civ. No. 66-196.

• Decision Date: 18 August 1966
• Docket Number: Civ. No. 66-196.
• Citation: 257 F. Supp. 268
• Court: U.S. District Court — Western District of Oklahoma
• Parties: Jimmy DYER, a minor, by and through his next friend, Ed Abel, Plaintiff, v. Harold BURNS, and R. B. Busby and J. T. Busby, partners, d/b/a Busby Brothers Motor Company, a co-partnership, Defendants.

257 F. Supp. 268

Jimmy DYER, a minor, by and through his next friend, Ed Abel, Plaintiff, v. Harold BURNS, and R. B. Busby and J. T. Busby, partners, d/b/a Busby Brothers Motor Company, a co-partnership, Defendants.

Civ. No. 66-196.

United States District Court W. D. Oklahoma.

August 18, 1966.

Lampkin & Wolfe, Oklahoma City, Okl., for plaintiff.

Hudson, Wheaton & Brett, Tulsa, Okl., for defendants.

ORDER REMANDING CASE

DAUGHERTY, District Judge.

Upon consideration of the plaintiff's Motion to Remand, the Court finds that said Motion should be sustained and the case remanded to State Court.

The plaintiff, a citizen of Oklahoma, sued the defendant Burns, a citizen of Missouri, and the defendant Busby Brothers, a citizen of Oklahoma, as a result of an automobile accident. The plaintiff was a passenger in one car and the defendant Burns was driving the other car. The car driven by the defendant Burns was owned by the defendant Busby Brothers and had been given to the defendant Burns as a prospective purchaser for a trial test of the car. Busby Brothers or its representative was not in the car at the time of the accident.

The defendant Burns removed the case alleging that the defendant Busby Brothers was fraudulently joined as a defendant.

In determining the right of removability, the courts have held the removal statutes should be strictly construed. Maurer v. International Typographical Union (D.C. Pa.1956), 139 F. Supp. 337. A joinder is not fraudulent where plaintiff does have a claim against the resident defendant thus joined, even though this defendant may have been joined solely to prevent removal. If there is doubt as to whether a plaintiff has stated a cause of action against the resident defendant, the joinder is not fraudulent and the case should be remanded. Parks v. New York Times Company (Fifth Cir.-1962) 308 F.2d 474, cert. denied 376 U.S. 949, 84 S.Ct. 964, 11 L.Ed.2d 969; Smith v. Southern Pac. Co. (Ninth Cir.-1951) 187 F.2d 397, cert. denied 342 U.S. 823, 72 S.Ct. 42, 96 L.Ed. 622.

A joinder may be deemed fraudulent for purposes of removal if the plaintiff fails to state a cause of action against the resident defendant and the lack of a cause of action is obvious according to the settled decisions or laws of the state. No Oklahoma case has been brought to the attention of the Court which provides that an automobile dealer is or is not liable for injuries or damages resulting from negligence in the operation of the dealer's car by a prospective purchaser who is driving the same alone in seeking to determine whether he will purchase such car from the dealer. In Downtown Chevrolet Co. v. Braune (1937), 181 Okl. 134, 72 P.2d 842, the Oklahoma Supreme Court held that an automobile dealer was responsible for any negligence in the operation of a car of the dealer being driven by a prospective purchaser when the dealer or his representative was personally present in the car at the time of the accident. This case seems to hold that liability was present there against the automobile dealer on the basis that the dealer exercised some control over the driver, the prospective purchaser.

There appears to be a division of authority in the states which have dealt with the problem of the liability of an automobile dealer for the negligence of a prospective purchaser in driving the car of the dealer, where the dealer or his representative is not present...