Glazier v. Van Sant, 471.
| Decision Date | 26 April 1940 |
| Docket Number | No. 471.,471. |
| Citation | 33 F. Supp. 113 |
| Parties | GLAZIER v. VAN SANT et al. |
| Court | U.S. District Court — Western District of Missouri |
Henry M. Shughart, of Kansas City, Mo., for plaintiff.
Rosenberg & Brenner, of Kansas City, Mo., for defendant.
The defendants have filed separate motions to dismiss the above action on the several grounds of misjoinder of parties and defective service of process. The defendant motor carrier was engaged as a common carrier over irregular routes in Missouri, Kansas and Oklahoma. It had authorized the Secretary of State under a Missouri statute to receive service for it. The defendant Indemnity Insurance Company of North America, a corporation, was engaged in the insurance business and had authorized the Superintendent of Insurance of the State of Missouri to receive service for it. Both of these defendants were also licensed in the state of Oklahoma.
In the latter state plaintiff claims that he was injured by reason of the negligence of a driver for the defendant motor carrier. The defendant insurance company was an insurance carrier and had filed with the Corporation Commissioner of the State of Oklahoma its undertaking to insure the defendant motor carrier against liability arising by reason of the negligence of its employees as well as for other claims. The plaintiff says that it was engaged as above stated on November 15, 1939.
Claiming that he was a resident of the state of Missouri, plaintiff brought suit against the two defendants jointly and attempted to obtain service as above stated. The plaintiff insists that the service was good, and that there is no misjoinder of parties.
These contentions will be considered.
1. On the subject of misjoinder of parties, an examination of the Oklahoma statute and decisions indicates that in a situation similar to this a claimant may sue jointly the motor carrier as well as the insurance company assuring it against damages for negligence. While the statute does not appear to contemplate such procedure, yet nevertheless, the statute has been so construed by the courts of Oklahoma as to confer the right.
Accordingly, it must be held in this case that the joint suit against the two defendants was proper, although such a procedure is not recognized in the state of Missouri upon claims arising within the state. Mosby v. Manhattan Oil Co., 8 Cir., 52 F.2d 364, 77 A.L.R. 1099.
2. On the question of the residence of the plaintiff, affidavits have been submitted by both parties. Plaintiff subscribed and swore to an affidavit on the 1st day of March, 1940, wherein he set forth in detail his right to assert residence at Kansas City, Missouri. However, on the next day, that is to say, on March 2nd, 1940, the plaintiff appeared in the office of the County Treasurer of Crawford County at Girard, Kansas, and made application for a certificate of title to an automobile, and also made out an application for automobile registration. In these applications he gave his address as 108 E. Howard Street, Girard, Kansas. He had bought the automobile the day before in Kansas City from the Kansas City Auto Sales Company.
Other affidavits show that the plaintiff's name appeared on the registration of the Elector's Book of the First Ward in the City of Girard, Kansas, for the general election of November 8, 1938. The address given on the registration book was 108 E. Howard Street,...
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...Ins. Co., 5 Cir., 132 F.2d 316, who is here to say that Louisiana cannot refuse to give effect to similar Texas law? Cf. Glazier v. Van Sant, D.C., 33 F.Supp. 113. The manifest injustice to plaintiff of deciding any other way is too apparent to warrant expanding upon to any great length. We......
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