Jensen v. Safeway Stores, 1716.

• Decision Date: 24 September 1938
• Docket Number: No. 1716.,1716.
• Citation: 24 F. Supp. 585
• Parties: JENSEN v. SAFEWAY STORES, Inc., et al.
• Court: U.S. District Court — District of Montana

24 F. Supp. 585

JENSEN v. SAFEWAY STORES, Inc., et al.

No. 1716.

District Court, D. Montana, Helena Division.

September 24, 1938.

C. A. Spaulding and Leo J. Kottas, both of Helena, Mont., for plaintiff.

Alf C. Kremer and Rex F. Henningsen, both of Butte, Mont., for defendant Safeway Stores, Inc.

BALDWIN, District Judge.

The plaintiff filed a complaint in the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark on March 28, 1938. Therein plaintiff alleges, among other things: (1) That at all of the times therein mentioned the defendant Safeway Stores, Inc., was and it now is a Nevada corporation, "and engaged in the business of retailing groceries and operating and conducting a place of business in Helena, Montana, known as and called the Safeway Store"; (2) That at all of the times therein mentioned "the defendant, John Doe, whose true name is to the plaintiff unknown, was an inhabitant and resident of the city of Helena, County of Lewis and Clark, State of Montana," a servant and agent of the defendant Safeway Stores, Inc., employed by it in said city, county and state, and that at all of the times mentioned therein he "was acting within the scope of his employment with said defendant corporation and pursuant to the duties incident thereto"; (3) That at all of the times therein mentioned "the defendants above named in the operation of said store occupied and used a certain store building known and numbered as 428 North Main Street in said City of Helena, Montana, and in said store building had set aside certain portions thereof as aisles and passageways for the use of the general public and patrons of said store; and that at all of the times therein mentioned and on the 26th day of January, 1938, the general public and particularly this plaintiff, was invited by defendants to use said aisles and passageways in looking over, inspecting and selecting groceries they might wish to purchase"; (4) "That one of said aisles and passageways so set aside for the public use as aforesaid was an aisle or passageway running between a counter containing groceries located at about the center of said store and a certain counter containing groceries located in the northerly side of said store, * * *;" (5) That at all of the times therein mentioned "it was the duty of the defendants to keep said aisles and passageways so set aside for the use of the general public and patrons of said store as aforesaid, safe and free from obstruction over which the persons using said aisles and passageways might trip and fall"; (6) That at all of the times therein mentioned "the defendants knew, or in the exercise of due and reasonable care should have known, that if said defendants placed, or caused to be placed, boxes or obstructions in said aisles or passageways * * persons using said aisles and passageways, and particularly this plaintiff, would be likely to trip over said box or obstruction and be injured thereby"; (7) "That notwithstanding the facts aforesaid the defendants negligently, carelessly and recklessly placed or caused to be placed a partially filled wooden crate or box of oranges in said aisle and passageway above described and it became thereby obstructed and dangerous to public travel and free and safe passage thereon"; (8) That on January 26, 1938, the plaintiff "entered said store of the defendants in the City of Helena, Lewis & Clark County, Montana, and passed over one of said aisles and passageways and purchased certain groceries then and there in said store and while in the exercise of due and reasonable care and caution, and in ignorance of said crate or box of oranges so placed or caused to be placed in said aisle and passageway by said defendants as aforesaid, passed along said aisle and passageway above described on his way toward the front of said store and while engaged in selecting other groceries, plaintiff unexpectedly tripped over said box or crate of oranges so placed or caused to be placed in said aisle or passageway as aforesaid and was violently thrown against certain wooden crates then and there being in said store and to and upon the floor of said store"; and (9) "That by reason of the facts aforesaid plaintiff received" certain particularly described injuries to his damage.

Summons was duly issued out of the state court, served upon the defendant Safeway Stores, Inc., and returned to that court without having been served upon the individual defendant.

In due time the corporate defendant made and filed a petition for the removal of such suit from the state court to this court and made and filed therewith a bond as required by law. Sec. 72, Tit. 28, U.S. C., 28 U.S.C.A. § 72. The state court accepted said petition and bond and ordered that the suit be "removed to the District Court of the United States for the District of Montana"; and, the transcript and record on removal were filed in this court in due time.

The plaintiff has moved this court "to remand the above-entitled action to the District Court of the First Judicial District of the State of Montana in and for the County of Lewis & Clark, upon the ground that said cause was improvidently and improperly removed from the said District Court" for certain stated reasons. Stated shortly, plaintiff's contention is that this court is without jurisdiction to entertain, hear, try or determine the above-entitled action because "the cause of action set forth in plaintiff's complaint is a joint one against both defendants for a joint tort committed by them".

It is thought that plaintiff's contention that the complaint in this action states a cause of action against the defendants as joint tort feasors is well grounded; and in consideration of the motion to remand the court will proceed upon that theory.

The defendant Safeway Stores, Inc., contends that the motion to remand should be denied for two reasons: (1) "There is a diversity of citizenship existing and the requisite amount in controversy"; and (2) "That there has been a fraudulent joinder for the purpose of preventing removal".

In my opinion neither one of these contentions is well grounded. It is too well settled to require a citation of authority that: (1) The right of removal from a state to a federal court exists in certain specified cases; (2) To the existence of the right it is essential that the case be shown to be such a case; (3) Where a removal is sought because of diversity of citizenship it must be shown that the controversy is between citizens of different states; (4) 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; (5) An action of tort which might have properly been brought against many persons or against one or more of them, and which is brought in a state court against two or more of them jointly, contains no separable controversy which will authorize its removal by some of the defendants into a district court of the United States; and (6) And, as in such case the plaintiff has an absolute right to sue one or all of the joint tort feasors, no motive can make his joinder of any of them a fraud.

When the facts appearing on the face of the record in the instant case are measured by these rules I am clearly of the opinion that it cannot be held properly that there exists a separable controversy between the plaintiff and the defendant Safeway Stores, Inc., or, that the defendant designated as "John Doe", has been fraudulently joined as a party to this action. It cannot fairly be said that he has no real connection with the controversy and that appears to be the test. In Chesapeake & Ohio R. Co. v. Cockrell, 232 U.S. 146, 152, 34 S.Ct. 278, 58 L.Ed. 544, the court held that to justify the removal of an action from a state to a federal court on the ground (1) That there exists a separable controversy; or (2) That there is a fraudulent joinder of a party defendant "the showing must be such as compels the conclusion that the joinder is without right and made in bad faith" page 280. In McAllister, Adm'rx, v. Chesapeake & Ohio R. Co., et al., 243 U.S. 302, 310, 311, 37 S.Ct. 274, 277, 61 L.Ed. 735, the court stated the rule as follows: "Since the amended petition states a joint cause of action against the Kentucky company and the Virginia company, the claim that there is a separable controversy in the case, justifying removal by the latter company, must fail, and since no facts are alleged in support of the charge that the joinder of the two companies is fraudulent, except that it was made for the purpose of preventing removal to the Federal court, this claimed reason for removal must also fail (Illinois Central R. R. Co. v. Sheegog, supra 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208, and Chesapeake & O. R. Co. v. Cockrell, 232 U.S. 146, 153, 34 S.Ct. 278, 58 L.Ed. 544, 547)".

It is obvious that defendant Safeway Stores, Inc., is liable, if it is liable at all, only because plaintiff suffered the injuries of which he complains as a result of negligence on the part of the defendant designated as "John Doe" as permitted by statute in Montana, Sec. 9190, Rev.Codes Mont.1935, acting within the scope of his employment. The act alleged is one of misfeasance, not one of nonfeasance, and it is stated to have been done by "the said John Doe, whose true name is to plaintiff unknown, while acting within the scope of his employment with said defendant corporation and pursuant to the duties incident thereto". Paragraphs 2 and 6 of the complaint herein. It follows that it should be and it is held that the complaint in the case at bar states a joint cause of action of tort against the defendant Safeway Stores, Inc., and the defendant designated therein as "John Doe". Secs. 5688, 7394, 7395, 7573, 7579, 7965, 8659, 8660 and 8686, Rev. Codes Mont.1935; Montague v. Hanson, 38 Mont. 376, 382-385, 99 P. 1063; Robinson v. F. W. Woolworth Co., 80...