Gulf & S.I.R. Co. v. Gulf Refining Co.

• Decision Date: 04 September 1919
• Docket Number: 94.
• Citation: 260 F. 262
• Parties: GULF & S.I.R. CO. v. GULF REFINING CO. et al.
• Court: U.S. District Court — Southern District of Mississippi

260 F. 262

GULF & S.I.R. CO. v. GULF REFINING CO. et al.

No. 94.

United States District Court, S.D. Mississippi, Jackson Division.

September 4, 1919

T. J Wills, of Raleigh, Miss., for plaintiff.

Hirsh Dent & Landau, of Vicksburg, Miss., for defendants.

HOLMES District Judge.

This is a motion by the plaintiff to remand the cause to the state court. The suit was filed by the Gulf & Ship Island Railroad Company, a Mississippi corporation, seeking indemnity or contribution from the defendants, the Gulf Refining Company a Pennsylvania corporation, and J. L. Carr and Mrs. May Blackwell, individual citizens of Mississippi, alleged to be joint tort-feasors with the plaintiff in the commission of an injury which has been fully satisfied solely by the plaintiff.

In the absence of a showing that the resident defendants were fraudulently joined for the purpose of preventing a removal the facts as stated in the plaintiff's pleading are decisive of the nature of the controversy. Chicago & Alton R.R. Co. v. McWhirt, 243 U.S. 422, 37 Sup.Ct. 392, 61 L.Ed. 826. Accordingly on this motion we must look to these facts to ascertain whether the case stated is one of joint liability against all of the defendants, or whether the facts reveal a separable controversy wholly between the plaintiff and the nonresident defendant.

The Gulf Refining Company extracts, manufactures, and sells at wholesale and retail kerosene, gasoline, and other petroleum products. Pursuant to orders previously given to one of its traveling salesmen, the Gulf Refining Company intended to ship to J. L. Carr, a retail country merchant, a drum of kerosene, and to E. Burnham three drums of gasoline. The drums were of iron, and were designated by stock numbers indented into the metal. The drum of kerosene intended for J. L. Carr carried the stock number 23937, and one of the drums of gasoline intended for E. Burnham bore the number 9770; the other numbers of the gasoline drums being immaterial. The bills of lading, waybills, and freight bills were made out correctly, and showed that Carr was to get the properly numbered drum of kerosene and Burnham the properly numbered three drums of gasoline. Both consignments were destined to stations on the line of the Gulf & Ship Island Railroad Company, the last of two connecting carriers over which the shipments were routed. In addition to being identified by stock numbers indented in the iron drums, which corresponded with the numbers on the bills of lading, waybills, and freight bills, shipping tags were prepared by the consignor's clerk; a cream-colored tag bearing the address, 'J. L. Carr, Taylorville, Miss.,' to be attached to the drum of kerosene, and three red tags for the gasoline drums, with the inscription, 'E. Burnham, Magee, Miss.'

And here is where the initial error occurred. Through the negligence of the nonresident and removing defendant's employe, the cream-colored tag was attached to drum numbered 9770, containing gasoline, and one of the red tags was attached to drum numbered 23937, containing kerosene. With this conflict between the addresses on the tags and the stock numbers on the drums and shipping bills, the three drums of gasoline and one of kerosene were delivered to the Mississippi Central Railroad Company, the initial carrier, and by it delivered to the plaintiff, the last carrier, which did not notice, or neglected to regard, the said conflict, and, in accordance with the addresses on the tags, delivered the drum of gasoline numbered 9770 to Carr, at Taylorville, and the drum of kerosene numbered 23937 and two drums of gasoline to Burnham, at Magee.

The resident defendant J. L. Carr thereafter carried the drum so delivered to his store, and, with the assistance of his clerk, the other resident defendant, Mrs. May Blackwell, poured its contents into a kerosene tank used for retailing, and, as alleged in the bill of complaint:

'With the information from the defendant oil company, charging them with notice of the likelihood of the said oil company's having made a mistake in the shipment, sold the said oil as kerosene, and wrongfully and unlawfully represented the said oil to be kerosene, when by the use of ordinary care and caution they could and should have known that it was gasoline.'

But it is not alleged what the information, 'charging them with notice of the likelihood of the oil company's having made a mistake,' consisted of, nor how by 'the use of ordinary care and caution they could and should have known that it was gasoline. ' These are mere conclusions of the pleader, who should state the facts from which he makes these deductions.

Among the purchasers at Carr's store of this gasoline for kerosene was Archie Yelverton, to whom the resident defendant, Mrs. May Blackwell, sold a gallon of supposed kerosene, which, while being used in his home as kerosene for illuminating purposes, because of its highly volatile and inflammable characteristics, exploded and burned to death two of his daughters.

Suits for the wrongful deaths were instituted against the Gulf Refining Company and J. L. Carr. The nonresident and removing defendant induced the plaintiffs in these suits to dismiss them and file other suits against the Gulf & Ship Island Railroad Company as sole defendant in each. These suits resulted in judgments against the railroad company for sums aggregating $50,000, which were satisfied in full by the payment of $17,500 in settlement of both...