Howard v. General Motors Corporation, EC 686

• Decision Date: 22 July 1968
• Docket Number: No. EC 686,687.,EC 686
• Citation: 287 F. Supp. 646
• Parties: Hugh Vernon HOWARD, Plaintiff, v. GENERAL MOTORS CORPORATION, and W. Leslie Jordan, d/b/a Jordan Chevrolet Company, Defendants. Hugh Vernon HOWARD, Mrs. Claire Howard Summers, Hugh L. Howard, Mrs. Grace Howard Blaine, and Lee M. Howard, Plaintiffs, v. GENERAL MOTORS CORPORATION, and W. Leslie Jordan, d/b/a Jordan Chevrolet Company, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

287 F. Supp. 646

Hugh Vernon HOWARD, Plaintiff, v. GENERAL MOTORS CORPORATION, and W. Leslie Jordan, d/b/a Jordan Chevrolet Company, Defendants.

Hugh Vernon HOWARD, Mrs. Claire Howard Summers, Hugh L. Howard, Mrs. Grace Howard Blaine, and Lee M. Howard, Plaintiffs, v. GENERAL MOTORS CORPORATION, and W. Leslie Jordan, d/b/a Jordan Chevrolet Company, Defendants.

Nos. EC 686, 687.

United States District Court N. D. Mississippi, E. D.

July 22, 1968.

Crawley & Ford, Kosciusko, Miss., for plaintiffs.

Huff, Williams, Gunn, Eppes & Crenshaw, Meridian, Miss., for defendants.

OPINION OF THE COURT

KEADY, Chief Judge.

Both of these cases, which originated in the Circuit Court of Attala County, present for common decision the propriety of federal court removal by one of the defendants, and they require examination into the state of products liability law in Mississippi. In one case, Hugh Vernon Howard is the sole plaintiff suing for his own personal injuries; in the other case, he is joined by his four adult children seeking recovery for the allegedly wrongful death of his wife, Mrs. Mildred Cameron Howard. Defendants in both cases are W. Leslie Jordan, d/b/a Jordan Chevrolet Company, a resident of Attala County, Mississippi (hereinafter referred to as "Jordan"), and General Motors Corporation, a citizen for purposes of diversity of a state other than Mississippi (hereinafter referred to as "General Motors").

General Motors has sought to remove both cases to this court, urging that the joinder of Jordan, the resident defendant, is fraudulent and was made solely to defeat federal jurisdiction, and also that the claim asserted against General Motors is a "separate and independent claim or cause of action" under 28 U.S.C. § 1441(c). Plaintiffs have responded by moving to remand to the state court.

The declarations in both cases allege in substance the following: On a date not specified, plaintiff Howard purchased from Jordan, a retail dealer of motor vehicles, a 1967 Chevrolet pickup truck which had been manufactured by General Motors. On April 15, 1967, Howard and his family were riding in that vehicle on a public highway near Kosciusko, Mississippi, when the pickup truck collided with a Mack tractor and trailer. Mrs. Howard, a passenger in the truck, was hurled forward into the steering wheel, sustaining fatal injuries. The driver, plaintiff Howard, was also allegedly hurled against the steering wheel. According to both declarations "the steering wheel and assembly then transmitted collision impact force to the plaintiff (or decedent) via the steering column of the plaintiff's pickup truck, * * *" Plaintiff Howard alleges that he received injuries upon impact against the steering wheel because it failed to telescope or collapse, thus greatly aggravating the injuries he suffered when the vehicles collided, and in the death action, the fatal injuries were proximately related to the type of steering apparatus found in the truck. Count I of each declaration seeks recovery on a general negligence theory against General Motors for failure to provide the truck with a "crash-worthy interior", including a telescoping and non-penetrating steering column, and against Jordan for selling it to Howard in such defective condition when the dealer knew, or should have known, of the defective condition, and failed to take precautions against the inherent danger, even though he knew Howard and his family were unaware of the defect. Count II seeks recovery against both defendants on the ground of strict liability in tort. A third count is based on wanton and willful misconduct on the part of both defendants in allowing the pickup truck to be sold upon the open market in its allegedly unsafe condition. In Howard's case alone, there are two additional counts based upon breach of express and implied warranties and misrepresentation.

I

The issue of whether there has been a fraudulent joinder is properly determined by searching the pleadings in the light of local law to ascertain if a cause of action has been stated against the resident defendant. In making this determination a federal court has the power to pierce the pleadings, but its power to retain jurisdiction over the action is limited to cases where in doing so, it finds that there has been bad faith in the joinder. The motive for joining a resident defendant is immaterial. McAllister v. C. & O. Railway Company, 243 U.S. 302, 37 S.Ct. 274, 61 L.Ed. 735. We think that the correct approach has been illustrated by the Court of Appeals for the Tenth Circuit in its statement that "a mere allegation of fraudulent joinder is not sufficient. * * * The pleader is the architect of his own lawsuit, and the misjoinder of parties or causes of action does not without more amount to a fraudulent joinder. There must be a deducible bad faith purpose to defeat jurisdiction." Updike v. West, (C.A.10th 1949), 172 F.2d 663, 665. It has also been stated that the defendant may show bad faith in joinder by proving that the plaintiff stated the facts knowing them to be false, or with enough information within reach so that he should have known them to be false. Wilson v. Republic Iron & Steel Company, 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144; Wecker v. National Enameling & Stamping Company, 204 U.S. 176, 27 S.Ct. 184, 51 L.Ed. 430.

It is in the light of the above concepts that we determine that there has been stated a cause of action against Jordan. This determination is reached by analysis of plaintiffs' allegations grounded upon strict liability in tort. The other counts contained in the declarations need not be discussed, since, as long as a cause of action is stated in any count, removal may not be effected.

In support of their contention that a cause of action is alleged to exist against Jordan, plaintiffs place principal reliance upon State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss. 1966). Although the Mississippi Supreme Court did not speak authoritatively upon the precise question here presented, it gave extensive indication of its present attitude toward strict tort liability, and, for this reason, that decision is considered in some detail. Homeowners in Webster County, Mississippi, brought suit in state court against a local contracting firm and State Stove Manufacturing Company, seeking recovery for the destruction of their residence and personal property, brought about by an explosion of the water heater in their home. The water heater was manufactured in Tennessee by the defendant Stove Company, and was purchased by Mississippi contractors from a Tennessee wholesaler. The defendant contractors who had built the plaintiffs' dwelling had the water heater installed by a plumber who negligently failed to install a proper relief valve in the hot water heater as directed by accompanying manufacturer's written instructions. The trial court held that the manner of installing the heater was not causually connected to the explosion, and dismissed the action as to the contractors; but it held the manufacturer liable. Appeals by both the plaintiff and the manufacturer followed. In a sweeping decision, the Mississippi Supreme Court overruled its previous holding in Ford Motor Company v. Myers, 151 Miss. 73, 117 So. 362 (1928), which had required privity of contract as a prerequisite to recovery against a manufacturer by a consumer. The Court did not stop there but proceeded to adopt, under certain express conditions, a rule of strict liability in tort. That doctrine was held applicable to manufacturers of a product, thus leaving no question as to its decided effect upon the status of General Motors as manufacturer of a motor vehicle. The State Supreme Court was also confronted with the status of a seller under the strict tort liability principle, but it failed to clearly state the rule governing a seller in the category of Jordan. Limited to the facts before it, the opinion of the Court simply stated its acceptance of § 402A of the Restatement of Torts, Second,¹ only "insofar as it applies to a manufacturer of a product and to a contractor who builds and sells a house with a product in it." (Emphasis added)

In § 402A of the Restatement of Torts, Second, it is declared unqualifiedly that any seller of a defective product unreasonably dangerous to the consumer is strictly liable in tort for any physical harm caused to ultimate consumers, even in the absence of negligence on his part. Had the Mississippi Court accepted this statement of the entire rule without an express limitation, our task would be an easy one. The Supreme Court's holding, however, leaves in real doubt the extent of the class of sellers other than manufacturers to which the rule of strict liability will attach. Whatever may be the difficulty in determining the degree, whether whole or partial, to which the Mississippi Court adopted § 402A, "our duty is tolerably clear. It is to decide, not avoid, the question." Daily v. Parker, 7 Cir. 1945, 152 F.2d 174, 177, 162 A.L.R. 819. We face then the precise question before the court: Will the Mississippi Supreme Court, when next presented with the question, hold that all sellers engaged in the business of selling a product are strictly liable in tort, or will it restrict its approval of § 402A so as to make the concept of liability without fault applicable only to those sellers having an opportunity to inspect, remedy, or otherwise guard against defects or unsafe conditions in products they place on the market for sale? An affirmative answer to either branch of this question would likely impose liability upon Jordan, the resident defendant.

Since State Stove, the Mississippi Supreme Court has not, to our knowledge, clarified its position with regard to the question just posed. It is notable, however, that the decision, so far as it went, represented a substantial departure from the previous attitude of the Court. Particularly noteworthy is the point that even though...