Hillis v. Rice

• Citation: 25 F. Supp. 813
• Decision Date: 03 January 1939
• Docket Number: No. 25.,25.
• Parties: HILLIS v. RICE et al.
• Court: U.S. District Court — Eastern District of Missouri

25 F. Supp. 813

HILLIS v. RICE et al.

No. 25.

District Court, E. D. Missouri, E. D.

January 3, 1939.

Eagleton, Waechter, Yost, Elam & Clark, by Mark D. Eagleton, of St. Louis, Mo., for plaintiff.

Kenneth Teasdale, David V. Campbell, and Edward J. McCarty, all of St. Louis, Mo., for defendants.

COLLET, District Judge.

The petition alleges: On February 4, 1938, Lillian B. Hillis was riding in an automobile driven by Carrie Allen Rice. The Rice car collided with an automobile operated by Louis E. Koontz for the Home Owners Loan Corporation. It is charged that both automobiles were operated negligently and that as a direct result thereof plaintiff was injured. The amount claimed is $15,000. Plaintiff is a resident of Missouri and brought this action against defendants Rice and Koontz in the State court. Later, by amendment, the defendant H. O. L. C. was joined as a defendant and the representative capacity of defendant Koontz alleged. The cause was removed to this court by defendant H. O. L. C., the defendants Rice and Koontz not joining in the petition therefor. Plaintiff thereafter filed motion to remand. In briefs filed by counsel it is stated that defendant Rice refused to join in the application for removal.

The application for removal was based on an alleged severability of the cause of action stated against defendant H. O. L. C. and upon the further ground that the action arises under the laws of the United States, Sec. 41, Title 28 U.S.C.A. Except in so far as the question of severability is involved in determining removability upon the ground that the action arises under the laws of the United States, the former ground for the asserted jurisdiction of this court is abandoned.

It is asserted that the H. O. L. C., being an administrative agency of the Government, may not be sued in tort actions without the consent of the Government. Plaintiff contends such consent has been given. This the H. O. L. C. denies and argues that a proper construction of the Act of Congress creating it negatives the existence of such consent. It is because of the necessity for a construction of this Act of Congress that the action is said to arise "under the laws of the United States."

Plaintiff relies upon the general proposition that all parties defendants to a cause of action must join in the application for removal. She insists that the cause of action stated against defendants Rice and the H. O. L. C. is joint and not severable and since defendant Rice does not join in the removal petition the cause must be remanded.

Defendant has filed in this court a motion to dismiss predicated upon the ground it may not be sued in actions of this kind. That motion must be put aside until jurisdiction is first determined.

There can be no serious doubt that the liability of the defendant H. O. L. C. depends upon the construction to be placed on the Act of Congress which created that Governmental agency. Therefore, this court has jurisdiction upon the ground that the action arises under the laws of the United States unless, as plaintiff contends, it is a necessary prerequisite to such jurisdiction that defendant Rice join in the application for removal. It is necessary that she join in that application unless the action stated against her and against the defendant H. O. L. C. are separate and independent actions. See Chicago, R. I. & P. Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055, hereafter referred to. It is separate or joint dependent upon whether the defense interposed by the H. O. L. C. to the effect it may not be sued makes it separate. The general rule is that separate and different defenses available to different defendants will not alone make the action severable as to those defendants. Since the alleged non-liability of the H. O. L. C. is a matter of pure defense, the general rule applies and this cause is not made separable by the interposition of this defense.

Mitchell v. Smale, 140 U.S. 406, 11 S.Ct. 819, 35 L.Ed. 442, is cited as authority supporting the contention that only one of several defendants to a single cause of action may remove the cause when the ground for removal is that the action arises under the laws of the United States. Mitchell v. Smale, supra, appears to support that theory. See Seattle & M. Ry. Co. v. State of Washington, C.C. Wash., 52 F. 594. But in Chicago, Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055, the Supreme Court had before it this identical question. It quoted with approval the following from the case of Torrence v. Shedd, 144 U. S. 527, 12 S.Ct. 726, 36 L.Ed. 528: "`Separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.'" page 855.

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