Henderlong v. Standard Oil Co.

• Decision Date: 13 December 1926
• Docket Number: No. 17645.,17645.
• Court: U.S. District Court — Northern District of California
• Parties: HENDERLONG v. STANDARD OIL CO. OF CALIFORNIA et al.

17 F.2d 184 (1926)

HENDERLONG v. STANDARD OIL CO. OF CALIFORNIA et al.

No. 17645.

District Court, N. D. California, S. D.

December 13, 1926.

Floyd D. Darby, of Healdsburg, Cal., and Casper A. Ornbaum, and Robert Duncan, both of San Francisco, Cal., for plaintiff.

Redman & Alexander, of San Francisco, Cal., for defendants.

KERRIGAN, District Judge.

Plaintiff herein seeks to hold the Standard Oil Company of California, a nonresident corporation, and a codefendant, Francis H. Cadwalader, one of its resident employees, for an act of negligence alleged to have been committed by both defendants. The case has been removed to this court on the ground that a separable cause of action is stated against the corporation, and at the present time the matter is before me on a motion to remand.

On the motion to remove, Judge R. L. Thompson, of the superior court of the state of California, considered the question with unusual care, and upon granting the motion prepared a written opinion, which fully covers the matter and is adopted by this court as a correct exposition of the law on the point involved:

"It is alleged that the accident occurred `while defendants were managing, operating, and driving a certain oil motor truck along and on the highway, and that said defendants negligently and carelessly drove said truck,' etc., so as to cause the death of Adelaide E. Henderlong, the daughter of plaintiff, and that her death was caused solely `by the negligence and carelessness with which said defendants managed and operated said truck.'

"The sole question is whether such facts pleaded present a cause of joint liability against joint tort-feasors, or a cause of joint and separable liability. The petition for removal is made pursuant to the federal Judiciary Act of 1789 as amended in 1887. 23 R. C. L. 655, 662. Where an action is brought in good faith against two defendants jointly, and one of the defendants is a resident of another state, the cause cannot be removed to the federal court, unless the pleadings disclose a separable controversy. 23 R. C. L. 671; Lewis on Removal of Causes, 461, No. 277; Deere, Wells & Co. v. Chicago, M. & St. P. Ry. Co. (C. C.) 85 F. 876; Chicago, R. I. & Pac. Ry. Co. v. Dowell, 229 U. S. 102, 33 S. Ct. 684, 57 L. Ed. 1091.

"Section 28 of the Judiciary Act provides: `* * * Any suit of a civil nature, at law or equity, * * * which may be brought in any state court * * * where there is a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove such cause into the District Court of the United States for the proper district. * * *'

"The question of the existence of a separable controversy must be determined solely from the complaint and pleadings on file. Fergason v. C., M. & St. P. Ry. Co. (C. C.) 63 F. 178; 23 R. C. L. 683; Williams v. New York, P. & N. R. Co. (C. C. A.) 11 F. (2d) 363, 45 A. L. R. 437. If it appears that a defendant has been joined solely for the purpose of having the cause tried in the court where the action is filed, the residence of such defendant must not be considered in determining the proper place of trial. C. C. P. 395; Lewis on Removal of Causes, 432, No. 258.

"`Where an action is brought jointly against master and servant to recover damages for injuries caused by alleged negligent acts of the servant, constituting a positive tort by the latter, and for which the master would be liable under the doctrine of respondeat superior, and the pleadings of the plaintiff also show concurrent negligence or wrongful acts of the master, the cause is clearly not removable on the grounds of separable controversy.' 23 R. C. L. 686.

"It seems to be the settled rule that there must appear from the pleadings concurrent negligence on the part of the master and the servant, the employer and the employee, jointly charged, and not merely imputed negligence on the part of the employer, in order to hold both jointly liable, so as to defeat the petition for removal on the ground of severable controversies. McIntyre v. So. Ry. Co. (C. C.) 131 F. 987. Where concurrent negligence, and a joint liability of the defendants joined in the action, does not affirmatively appear from the pleadings, the mere filing of a petition and bond for removal within the 30 days allowed by statute, divests the state court, and automatically removes the case to the federal court. Frazier v. Hines (D. C.) 260 F. 874; Williams v. Delaware, L. & W. R. Co. (D. C.) 266 F. 1003; Williams v. New York, P. & N. R. Co. (C. C. A.) 11 F.(2d) 363, 45 A. L. R. 437; Lewis on Removal of Causes, 457, No. 274.

"As to just what facts will constitute a separable controversy between an employer and an employee is often difficult to determine. Each case must be determined upon its own particular facts. Among numerous authorities, where it has been held that a severable controversy did not exist, are Chesapeake & O. R. Ry. v. Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121; Cincinnati, N. O. & Tex. Co. v. Bohon, 200 U. S. 221, 26 S. Ct. 166, 50 L. Ed. 448, 4 Ann. Cas. 1152; Deere, Wells & Co. v. Chicago, M. & St. P. Ry. (C. C.) 85 F. 876; Chicago, Rock Island & Pac. Ry. Co. v. Dowell, 229 U. S. 102, 33 S. Ct. 684, 57 L. Ed. 1090.

"In the last case cited above, which is relied upon by plaintiff in the instant case, the complaint alleged that the injuries complained of occurred because `the engine * * * was old, worn, and defective; * * * it leaked steam into its cylinder; * * * that the appliances * * * for starting and stopping the engine were * * * defective; * * * that the driving-wheel brakes were defective; * * * that the defendant Johnson in charge * * * of the * * * engine * * * was incompetent and unskillful,' etc. In other words, it did affirmatively appear from the complaint in that case that the master or employer was negligent in supplying the servant or engineer with a defective, dangerous engine, and that the company was negligent in employing an incompetent and unskillful engineer. This constituted allegations clearly charging the railroad company itself with negligence, and since its negligence and the negligence of the servant joined to furnish the cause complained of, the cause of course was not severable, but the alleged negligence of both defendants mingled to cause the accident complained of. The principle of respondeat superior alone was not involved in this action. The same principle was held to warrant a removal of the causes in Beuttel v. Railway Co. (C. C.) 26 F. 50, and Fergason v. Ry. Co. (C. C.) 63 F. 177.

"In the case of Deere, Wells & Co. v. Chicago, etc., Ry. Co. (C. C.) 85 F. 876, relied on by plaintiff in the instant case, the court there said: `* * * In the case now before the court there is not involved a question * * * of the liability of a master to his servant for any failure of the master's duty. The facts upon which the plaintiff company relies are that a fire was started upon the right of way of the defendant company, which was negligently allowed to spread to the property of the plaintiff company, causing its destruction. The negligence charged was the failure to properly watch and guard the fire thus set out. * * * The acts charged are one, to wit,...