Hagen v. Payne

• Decision Date: 17 October 1963
• Docket Number: No. 1748.,1748.
• Citation: 222 F. Supp. 548
• Parties: Marie HAGEN by Elza Hagen, Her Father and Next Friend, and Elza Hagen, in His Own Right, Plaintiffs, v. Daniel H. PAYNE and Kansas City Fire and Marine Insurance Company, Defendants.
• Court: U.S. District Court — Western District of Arkansas

222 F. Supp. 548

Marie HAGEN by Elza Hagen, Her Father and Next Friend, and Elza Hagen, in His Own Right, Plaintiffs, v. Daniel H. PAYNE and Kansas City Fire and Marine Insurance Company, Defendants.

No. 1748.

United States District Court W. D. Arkansas, Fort Smith Division.

October 17, 1963.

Duty & Duty, Rogers, Ark., for plaintiffs.

Little & Enfield, Bentonville, Ark., for Daniel H. Payne.

Warner, Warner, Ragon & Smith, Ft. Smith, Ark., for Kansas City Fire & Marine Ins. Co.

JOHN E. MILLER, Chief Judge.

On August 26, 1963, the plaintiffs filed their motion to remand this cause to the state court whence it was removed.

The complaint of plaintiffs was filed in the Circuit Court of Benton County, Arkansas, on July 25, 1963. Summons was served on the defendant, Kansas City Fire and Marine Insurance Company, on July 29, 1963, by service upon Harvey G. Combs, Insurance Commissioner of the State of Arkansas, and statutory agent for service of the said defendant.

On August 16, 1963, the defendant, Kansas City Fire and Marine Insurance Company, filed its petition for removal, in which it alleged that the court has original jurisdiction of the action by virtue of the provisions of 28 U.S.C. § 1332 (1962 Supp.), and that the case was removable under the provisions of 28 U.S.C. § 1441(a).

In paragraph III of the petition for removal, the removing defendant alleged:

"* * * that the complaint filed by the plaintiffs herein joins as a defendant Daniel H. Payne and alleges that said defendant is a citizen and resident of the State of Arkansas. Petitioner further states that said defendant, Daniel H. Payne, has not been served with process, summons or otherwise as of the date of this petition, and to the best of this petitioner's knowledge, no attempt has been made to serve defendant, Daniel H. Payne, and that said plaintiffs join said defendant in this cause with no intention of ever securing service of process on him and with the fraudulent intention of depriving this Court of jurisdiction of the matter herein concerned. That the action herein sought to be removed, in truth and in fact, is a controversy between citizens and residents of different states, as aforesaid, and is properly removed to this Court."

In paragraph IV of the petition the removing defendant alleged that Payne was improperly joined as a defendant "in that the alleged cause of action against this petitioner, as set forth in the complaint of the plaintiffs, is based upon the contractual obligation of the petitioner with their insured and the statutory authority, as set forth in plaintiffs' complaint, allegedly authorizing a direct action against this petitioner. Therefore, the alleged cause of action, if any, against the defendant Daniel H. Payne is an action in negligence; that for the foregoing reasons said defendant Daniel H. Payne was improperly joined as a defendant and that accordingly this petitioner is entitled to remove this cause and disregard the alleged complaint and cause of action against the defendant Daniel H. Payne for the reasons aforesaid and for the further reason that the alleged cause of action against this petitioner is a separate and independent claim than the alleged cause of action against the defendant, Daniel H. Payne, and that accordingly this petitioner is entitled to have the claim against it removed to this Court."

The removing defendant also alleged that the plaintiffs' complaint "wholly fails to state a cause of action against the minor defendant, Daniel H. Payne, in that said complaint alleges the plaintiff, Marie Hagen, was a passenger in the vehicle driven by the said defendant, Daniel H. Payne, and wholly omits any allegation of wilful and wanton negligence on the part of said Daniel H. Payne as required by Ark.Stats., Sec. 95-913 et seq. Sec. 75-913 et seq."

In the motion to remand the plaintiffs alleged that the case was commenced jointly against the defendants, and that prior to the filing of the petition for removal, "a summons was issued out of the Benton County Circuit Court against the defendant, Daniel H. Payne, that the aforesaid summons was duly served upon the aforesaid defendant, Daniel H. Payne, on the 17th day of August, 1963."

The plaintiffs also stated in the motion to remand that Daniel H. Payne is a necessary and indispensable party to the above cause; is a resident of Benton County, Arkansas, and therefore, that complete and absolute diversity of citizenship is lacking to establish jurisdiction in the Federal Court in the above cause.

The removing defendant caused to be made a part of the record a copy of the summons referred to by plaintiffs, which shows it was issued August 16, 1963, and was served on August 17, 1963. The return of the Sheriff discloses that the summons was served "by delivering a copy and stating the substance thereof to the within-named Daniel H. Payne by serving his father Percy Payne at his usual place of abode, in Benton County, Arkansas."

On September 3, 1963, the removing defendant filed its motion to quash the service of the summons on the defendant Daniel H. Payne, and alleged that the summons was not served in the form nor the manner nor the time as required by law, and that the court was without jurisdiction over the person of the said defendant Payne.

Prior to the filing of the said motion to quash the service, the removing defendant on August 27, 1963, filed its motion to strike from the plaintiffs' complaint the allegations that "purport to state a cause of action against the defendant, Daniel H. Payne, and that the defendant, Daniel H. Payne, has been improperly joined as a defendant in this cause of action, to-wit, Paragraph 2 of plaintiffs' complaint, Paragraph 5 of plaintiffs' complaint insofar as it pertains to the defendant, Daniel H. Payne."

The conclusion reached by the court on the motion to remand makes it unnecessary to consider the two motions filed by the removing defendant.

Following the filing of the motions by the removing defendant and the motion to remand by plaintiffs, the court by letter dated September 6, 1963, addressed to the attorneys for the removing defendant and for the plaintiff, suggested that if the plaintiffs desired to perfect their service on the defendant Payne that they should cause a summons to be issued by the Clerk of this court directed to the United States Marshal for service in accordance with the provisions of 28 U.S.C. § 1448, which provides that in all cases removed from any state court in which one or more of the defendants has not been served with process, or in which the service has not been perfected prior to removal, or in which the process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such District Court.

Following the suggestion of the court, summons was issued by the Clerk of the Court upon the request of plaintiffs, and the United States Marshal attempted to serve the summons on defendant, but was advised that the defendant at that particular time, September 17, 1963, was serving six months' active duty in the National Guard at Fort Sill, Oklahoma, and further that the defendant's parents had purchased a place in Oklahoma and had moved there. Upon the return of the summons showing that the defendant Payne was at that time residing in Oklahoma, the plaintiffs caused an alias summons to be issued and served upon the defendant Payne in Oklahoma in strict accordance with the provisions of Ark. Stat.Ann., Sec. 27-339. The affidavit of service executed by the attorney for plaintiffs is as follows:

"I, Davis Duty, the undersigned, state under oath:

"That I am the attorney of record, along with Jeff Duty, for the plaintiffs in the above entitled matter; that a copy of the attached summons and a copy of the Complaint, certified by the Clerk of the Federal District Court for the Western District of Arkansas, were sent pursuant to Arkansas Statute 27-339 by certified mail on the 23rd day of September, 1963, (the receipt for which certification being attached hereto) to the defendant in the above cause, Daniel H. Payne, who was a domiciliary of the State of Arkansas at the time that the cause of action in the above captioned matter arose against him; and that the Return Receipt, signed by the aforesaid defendant, for the above described certified letter is attached hereto and establishes that the said defendant did actually and personally receive the aforesaid certified letter; and that at the time that the defendant aforesaid was served constructively as heretofore set out, he was outside the State of Arkansas."

It should be borne in mind that plaintiffs alleged in their complaint that the defendant, Daniel H. Payne, was a domiciliary of Arkansas and resided in Benton County; that on September 10, 1962, he was employed by Rogers School District No. 30 as the driver and operator of a school bus used in the transportation of pupils from their homes to the school and from the school to their homes; on that date the plaintiff Marie Hagen was being transported in the bus as a pupil; that the defendant driver, Payne, was engaged in the performance of his duty as the agent and employee of the School District in the driving and operation of the bus; that while so engaged, and while the plaintiff was being transported as a pupil, the defendant Payne negligently failed to keep a proper lookout, diverted his attention from the road ahead, operated the bus in a reckless and careless manner without due care or caution and took an unnecessary and unwarranted risk in the operation of the bus; and that the bus left the highway, went over an embankment and turned over, and as a direct and proximate result of the negligence of the defendant Payne, the plaintiff, Marie Hagen, received personal injuries for which she seeks damages.

Section 66-3240, Ark.Stat.Ann., (1961 Supp.), provides:

"When liability insurance is

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