Loveless Mfg. Co. v. Roadway Exp.

• Decision Date: 05 May 1952
• Docket Number: Civ. No. 2717.
• Citation: 104 F. Supp. 809
• Parties: LOVELESS MFG. CO. v. ROADWAY EXP., Inc. (Edwards et al., third party defendants).
• Court: U.S. District Court — Northern District of Oklahoma

104 F. Supp. 809

LOVELESS MFG. CO. v. ROADWAY EXP., Inc. (Edwards et al., third party defendants).

Civ. No. 2717.

United States District Court N. D. Oklahoma.

May 5, 1952.

Wheeler & Wheeler, Tulsa, Okl., for plaintiff.

Pierce, Rucker, Mock, Tabor & Duncan, Tulsa, Okl., for Roadway Express, Inc.

Williams, Boesche & McDermott, Tulsa, Okl., for John C. Edwards, d/b/a, etc.

Rosenstein, Fist & Shidler, Tulsa, Okl., for American Equitable Assur. Co. of New York.

WALLACE, District Judge.

This is an action for damages arising out of a contract of carriage. Jurisdiction of the court is based on diversity of citizenship and the required jurisdictional amount. Third parties were brought in under the Third Party Practice, Federal Rules of Civil Procedure, Rule 14(a), 28 U.S.C.A.

Sometime prior to the contract of carriage here involved, a representative of the defendant Roadway Express, Inc.,¹ an Ohio corporation, contacted the plaintiff, Loveless Manufacturing Company,² an Oklahoma concern, to solicit the business of transporting a large shearing machine from Hamilton, Ohio, to Tulsa, Oklahoma. At that time, the soliciting agent of Roadway was informed that Loveless had no facilities for unloading the heavy equipment. Upon the representation of the agent that Roadway would do the unloading, Roadway was awarded the carriage contract.

On the 10th of May, 1950, at Hamilton, Ohio, Roadway accepted from the Columbia Machinery and Engineering Company, consignor, a large shearing machine and one box of parts, total weight 17,500 pounds. The machine was transported under a uniform bill of lading issued on May 10, 1950. This bill of lading was delivered to the plaintiff, Loveless, along with an invoice in the amount of $7,160 which Loveless paid.

The machine arrived in Tulsa on the 15th of May, 1950. Roadway transported the machine, which was loaded on its enclosed truck, to the Loveless premises and stopped some eighty to one hundred feet from the point of delivery which was a concrete slab adjacent to the shop of Loveless. Roadway's driver then asked Loveless how the machine was to be unloaded, and the driver was informed by Loveless that he had nothing to do with the unloading and that Roadway was the party responsible for that undertaking. Roadway's driver then called his company and informed it of the situation. Some thirty minutes later another truck with a winch and flat bed trailer arrived at the Loveless premises. This second truck was owned by John C. Edwards, d/b/a Edwards Transfer Company.³ Only one man, the driver of the Edwards truck, accompanied this piece of motor equipment, and he along with the driver of the Roadway truck and another employee of Roadway were engaged in transferring the shearing machine from the Roadway truck to the flat bed trailer of the Edwards truck when the machine toppled over and was damaged.

Loveless refused to accept delivery of the damaged machine, which Roadway retained custody of, and filed a claim for the loss with Roadway on June 13, 1950. Roadway refused to pay the claim and Loveless commenced this suit to recover damages for the machine in the amount of $7,160. Roadway filed its answer and by a third party complaint brought in Edwards as a third party defendant. This third party complaint attempted to substitute Edwards in the place of Roadway as the party liable to Loveless, and on motion of Edwards, the third party complaint was dismissed for the attempted substitution of a party with citizenship of the same state as that of the plaintiff, which would in effect make Loveless an involuntary plaintiff against Edwards resulting in defeating Federal jurisdiction.

Roadway then amended its third party complaint and alleged that the defendant, Roadway, engaged the third party defendant, Edwards Transfer Company, to unload the machine; that the third party defendant was an independent contractor in unloading said machine, which was done for and on behalf of the defendant, Roadway; and that the damage to the machine was due to the negligence of the third party defendant. In a separate paragraph, the defendant, Roadway, made precisely the same allegations, with the exception that it was alleged that the Edwards Transfer Company was acting as agent, servant for, and on behalf of Roadway Express, Inc. The defendant then asked for recovery over and against the third party defendant, Edwards, for any part of the damages which Loveless might recover from Roadway. Edwards again moved to dismiss the third party complaint which motion was overruled.

Edwards, third party defendant, upon motion granted, brought in the American Equitable Assurance Company of New York as an additional third party defendant to the third party complaint of Edwards. The third party complaint filed by Edwards was based upon a contract of insurance. The American Equitable Assurance company moved to have the third party complaint of Edwards dismissed which motion was overruled.

There were several grounds urged by both of the third party defendants for dismissal of the third party complaints. Prior to the 1948 amendment to Rule 14(a) of the Federal Rules of Civil Procedure, there were a number of conflicting decisions which were in part due to the wording of the rule. The amendment in 1948 clarified one difficulty which was encountered by the courts, but third party practice continues to be one of the most difficult of the procedural rules. A careful consideration of the treatment of Rule 14(a) along with the cases cited in the treatises by Barron & Holtzoff, Federal Practice and Procedure, Vol. 1 Rules Edition, §§ 421-427, and Moore's Federal Practice, (2d Ed.) Vol. 3, Paragraphs 14.07, 14.08, 14.10, and 14.26, amply covered all objections urged for dismissal of the third party complaints.

After this suit was filed, but before the trial, an offer was made to Roadway for $5,500, for the damaged machine. This was an unexpected and advantageous offer as to all parties concerned, for it resulted in mitigation of damages down to $1,660. Upon agreement of Roadway, Loveless, and Edwards, the damaged machine was sold and Roadway retained the proceeds for proper disposition after a ruling on the merits of the case. Federal jurisdiction was not defeated by the reduction in damages below the jurisdictional amount, for the law is well established that subsequent events reducing the amount recoverable will not defeat Federal jurisdiction once it is invoked. Ford, Bacon & Davis, Inc., v. Volentine, 5 Cir., 64 F.2d 800, 801, and cases cited therein.

At the trial of the case, the evidence disclosed that Roadway upon its own volition, without any request of Loveless, and without informing Loveless of any tariff regulations, contacted Edwards for the purpose of acquiring equipment to unload the machine which was subsequently damaged. This arrangement with Edwards was made by authority of Roadway's manager. One of the main controverted facts was the status of Edwards, i. e., whether it occupied the position of an independent contractor or whether the truck and driver of Edwards were hired by Roadway so as to make the driver of the Edwards truck a special servant of Roadway. From all of the testimony elicited at the trial, the court has concluded that the arrangement between Roadway and Edwards was that Edwards was hiring out the truck and driver on an hourly basis, and that Roadway had absolute control or the right to control the unloading operations as well as control over the Edwards truck and driver. It is true that the driver of the Edwards truck was in charge of the operation of the winch mounted on the Edwards equipment, but Roadway was the special master; and the driver of the Edwards truck was the special servant of Roadway due to the element of control being in the hands of Roadway. It should also be noted at this point that the truck rented to Roadway was not defective and was adequate for the work for which it was to be used.

From the complaint of Loveless, it is ascertained that recovery of damages is based upon a breach of the contract of carriage. To the complaint, Roadway answered alleging that the contract of carriage had been completed on its part, and that a tariff...