McPherson v. Hoffman

• Decision Date: 25 February 1960
• Docket Number: No. 13863,13864.,13863
• Citation: 275 F.2d 466
• Parties: William H. McPHERSON and McPherson Broach & Machine Company, a Corporation, Third-Parties Defendant and Appellants, v. Gerrit HOFFMAN, Plaintiff and Appellee (Chesapeake & Ohio Railway Company, a Virginia Corporation, Defendant, Third-Party Plaintiff and Appellee). CHESAPEAKE & OHIO RAILWAY COMPANY, a Virginia Corporation, Defendant and Third-Party Plaintiff, Appellant (William H. McPherson and McPherson Broach & Machine Company, Third Parties Defendant), v. Gerrit HOFFMAN, Plaintiff and Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

275 F.2d 466 (1960)

William H. McPHERSON and McPherson Broach & Machine Company, a Corporation, Third-Parties Defendant and Appellants, v. Gerrit HOFFMAN, Plaintiff and Appellee (Chesapeake & Ohio Railway Company, a Virginia Corporation, Defendant, Third-Party Plaintiff and Appellee).

CHESAPEAKE & OHIO RAILWAY COMPANY, a Virginia Corporation, Defendant and Third-Party Plaintiff, Appellant (William H. McPherson and McPherson Broach & Machine Company, Third Parties Defendant), v. Gerrit HOFFMAN, Plaintiff and Appellee.

Nos. 13863, 13864.

United States Court of Appeals Sixth Circuit.

February 25, 1960.

COPYRIGHT MATERIAL OMITTED

James K. Brooker, Smith, Brooker & Harvey, Bay City, Mich., on brief for Wm. H. McPherson, etc.

Robert A. Straub and Robert B. Seeley, Detroit, Mich., and Jerome Weadock, Saginaw, Mich., on brief for Chesapeake & Ohio R. Co.

John Purcell, of Heilman & Purcell, Saginaw, Mich., on brief for Gerrit Hoffman.

Before MARTIN, MILLER and CECIL, Circuit Judges.

CECIL, Circuit Judge.

These two appeals are from a judgment in a case tried in the United States District Court for the Northern Division of the Eastern District of Michigan.

Gerrit Hoffman, plaintiff and appellee, a resident and citizen of the State of Michigan, instituted suit under the Federal Employers' Liability Act, Section 51, Title 45 U.S.C.A. against The Chesapeake and Ohio Railway Company, a Virginia corporation, to recover damages for injuries sustained in an automobile collision which occurred March 26, 1957.

On the day of the accident Hoffman, an employee of the defendant railroad, along with several other employees, was being transported in a truck of the defendant operated by one of its employees, from Saginaw to a place near Flint where the employees were to perform some work for the defendant. While they were en route, the truck of the defendant collided with an automobile driven by William H. McPherson and owned by McPherson Broach and Machine Company. The plaintiff sustained injuries to his body, and particularly his arm, which he claims are of a permanent nature.

The Chesapeake and Ohio Railway Company as third party plaintiff, and with the approval of the court, brought in William H. McPherson and McPherson Broach and Machine Company as third-parties defendant. (The Chesapeake and Ohio Railway Company will be sometimes referred to as Chesapeake or Chesapeake and Ohio or the Railroad. William H. McPherson and McPherson Broach and Machine Company will sometimes be referred to as the McPhersons.) The third-party complaint alleged in substance that the accident was caused by the sole negligence of the driver of the McPherson Broach and Machine Company automobile. Both the driver and the company are residents of the State of Michigan.

Rule 14(a), F.R.Civ.P., 28 U.S. C.A. provides, "Before the service of his answer a defendant may move * * * for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him."

The theory of this rule is indemnity, that is, liability over from the third-party defendant to the defendant. Moore's Federal Practice, Vol. 3, Section 14.16 (2d Ed.) Counsel for the Chesapeake and Ohio argue in their brief that they were entitled to such indemnity from the third-parties defendant.

The Trial Judge tried the case to a jury as though the defendants had been sued by the plaintiff jointly as joint tort feasors. A verdict was returned in favor of the plaintiff against both McPhersons and Chesapeake in the sum of $30,000. The court entered a joint and several judgment for this amount against the defendant and third-parties defendant.

At the conclusion of all the evidence the third-parties defendant moved for a directed verdict against the plaintiff, Gerrit Hoffman, and for dismissal from the case on the ground that there was no diversity of citizenship between the parties. This motion was overruled.

The defendant and the third-parties defendant made appropriate motions after judgment designed to raise the various questions with which we are now confronted. All motions were overruled.

We take up first whether or not the third-party complaint stated a claim against third-parties defendant. It charged the McPhersons with being solely responsible for the accident through their negligence. If this were true there was no liability against Chesapeake and Ohio and it would have had a complete defense; that it was not negligent. In the alternative, they might both be negligent, in which event they would be joint tort feasors. In either case the Chesapeake and Ohio would not be entitled to indemnity.

The question thus presented was decided by this Court in The Detroit Edison Company v. Price Brothers Company, 6 Cir., 249 F.2d 3. On the authority of that decision we hold that the third-party complaint did not state a valid claim for relief against the McPhersons. The same question arose in Baltimore & Ohio Railroad Co. v. Saunders, 4 Cir., 159 F.2d 481.

Furthermore the plaintiff had a right to determine for himself whom he would sue. He might have sued the Railroad Company and the McPhersons jointly or he might have sued either separately. "Joint tort feasors have no right to determine whether they shall be jointly or separately sued for their wrong. This right rests with the party aggrieved and if he elects to sue them jointly he is entitled to a verdict responding to his allegations so that he may have judgment for his entire damages against both of the wrongdoers." Detroit City Gas Co. v. Syme, 6 Cir., 109 F.2d 366, 369. After he had made his choice, neither the court nor the defendant could add another party defendant for him.

In Baltimore & Ohio Railroad Co. v. Saunders, cited above, the Court said, 159 F.2d at page 483: "The discretion was properly exercised here in denying a motion which would have required plaintiffs to litigate a cause of action which they did not assert in their complaint against parties whom they did not join as defendants, and whose joinder, if they had been joined, would have defeated the jurisdiction of the court." See also Wolfe v. Johnson, D.C., 21 F.R.D. 280.

Under the Federal Employers' Liability Act the plaintiff could bring his action against the Railroad in Federal Court without diversity of citizenship. Section 56, Title 45 U.S.C.A. He could not have sued the McPhersons in Federal Court separately nor could he have joined them with Chesapeake and Ohio because there was no diversity of citizenship between him and the McPhersons. Section 1332, Title 28 U.S.C. What he could not do directly could not be done for him indirectly. The court did not have jurisdiction to enter a judgment against third-parties defendant in favor of the plaintiff Hoffman. Jurisdiction cannot be waived.

At the conclusion of all the evidence the Trial Judge asked counsel for the plaintiff if he wished to amend to include the McPhersons as parties defendant. He replied that he did but no amendment was made. Such an amendment would be of no avail to give the court jurisdiction. See Moore's Federal Practice, supra, Section 14.27; also Baltimore & Ohio Railroad Co. v. Saunders, supra, 159 F.2d 481.

"It is difficult to comprehend why this Court should now have jurisdiction over a claim of a New York plaintiff against a New York defendant after they are brought together through the circuitous means of a third party complaint and then an amended main complaint, whereas had the procedure been direct no jurisdiction would have existed. Jurisdiction cannot be based upon any theory of an ancillary proceeding, for by reason of the amended complaint there no longer is any main action in which diversity exists. Nor does this case fall within the principles of the rule that once having had jurisdiction, this Court retains jurisdiction. Here there never was jurisdiction over any claim of the plaintiff against Lorrac Real Estate Corporation. Moreover, to accept jurisdiction herein...