Mails v. Kansas City Public Service Co.

• Decision Date: 04 September 1943
• Docket Number: No. 1447-1450.,1447-1450.
• Citation: 51 F. Supp. 562
• Court: U.S. District Court — Western District of Missouri
• Parties: MAILS v. KANSAS CITY PUBLIC SERVICE CO. et al. SIFUENTES v. SAME (three cases).

51 F. Supp. 562

MAILS v. KANSAS CITY PUBLIC SERVICE CO. et al.

SIFUENTES v. SAME (three cases).

Nos. 1447-1450.

District Court, W. D. Missouri, W. D.

September 4, 1943.

Thompson & Osborne, of Kansas City, Mo., for plaintiffs.

David P. Dabbs (of Cooper, Neel & Sutherland), of Kansas City, Mo., for defendants H. L. Hansen and W. C. Turvey.

Mont T. Prewitt, of Kansas City, Mo., for defendant Kansas City Public Service Co.

REEVES, District Judge.

The nonresident defendants have sought to remove the above cases. The attempt was unavailing in a state court, whereupon transcripts of each case were filed here. Each of the plaintiffs has filed a motion to remand. Identical questions are presented. No factual issue was raised and each of the parties relies upon the legal aspects presented by the original complaints, petitions for removal, and the motions to remand.

According to the several complaints the plaintiffs were injured while passengers upon a street car owned and operated by the local defendant, Kansas City Public Service Company, on February 23, 1942. Such injuries, as alleged, were occasioned by a collision between said street car and a truck operated by the nonresident defendants at the intersection of 16th and Main Streets in Kansas City, Missouri. The street car was proceeding northwardly on Main Street whereas the truck was going eastwardly on 16th Street when the collision occurred. With respect to the collision each of the plaintiffs averred: "* * * that said street car and said automobile truck were under the exclusive control and management of defendants herein and that plaintiff is without knowledge as to the cause or causes that operated to bring about the aforesaid collision, but that defendants are possessed of such knowledge, and that said collision would not have occurred except for the negligence of defendants."

The nonresident defendants in each case sought removal upon the several grounds, (a) that they were nonresidents of the state and that the matter in controversy involved more than $3,000, (b) that a separable controversy was stated in each suit as between the plaintiffs and such nonresident defendants, (c) that the plaintiff in each case sustained a contractual relation to the local defendant as its passenger and each suit in substance proceeded against it on such contract, (d) that no liability was stated in said complaints against the nonresident defendants, and (e) that there was a fraudulent joinder.

1. For an intelligent discussion of the contentions made by the removing defendants it seems proper to state certain legal propositions as postulates:

(a) Under the law of torts a single indivisible injury occasioned by the separate independent negligent acts of several tort-feasors would lay the foundation for a single action or a joint action against such tort-feasors. 62 C.J. § 45, p. 1133.

(b) In like manner, under the law relating to the parties to controversies, even though the wrongful acts of such persons be separate and distinct, yet if they concur in point of time "and in directly causing a single injury, the wrongdoers are joint tort-feasors, and may either be sued severally or any or all may be joined as defendants in one action; * * *." 47 C.J. § 163, p. 81; Graves v. City & Suburban Telegraph Ass'n, C.C., 132 F. 387.

(c) The several plaintiffs asserted that they were injured by reason of a collision between the street car in which they were passengers and a truck operated by the nonresident defendants. The averment as to negligence was, in substance, that both the street car and the truck "were under the exclusive control and management of defendants herein * * * and that said collision would not have occurred except for the negligence of defendants." There was an averment that the plaintiff in each case was without knowledge as to what caused the collision but that each of the defendants necessarily possessed such knowledge.

Under the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and particularly by Rule 8 thereof, a complaint is sufficient if it contain "* * * a short and plain statement of the claim showing that the pleader is entitled to relief, * * *."

2. The plaintiffs in these cases were passengers in a street car. Prima facie the operatives of the street car and the truck so manipulated the vehicles as to bring them into collision with consequent injuries to the plaintiffs. The plaintiffs were not in position to know what occasioned the collision. The operatives of the two colliding vehicles were in such position. They were agents of their respective employers and it was therefore permissible for the complainants to assert that the defendants possessed knowledge as to what causes brought about the collision and...