Morrell v. United Air Lines Transport Corporation

• Decision Date: 26 October 1939
• Parties: MORRELL v. UNITED AIR LINES TRANSPORT CORPORATION (UNITED AIRCRAFT CORPORATION et al., Third-Party Defendants). LICKEL v. SAME.
• Court: U.S. District Court — Southern District of New York

29 F. Supp. 757

MORRELL v. UNITED AIR LINES TRANSPORT CORPORATION (UNITED AIRCRAFT CORPORATION et al., Third-Party Defendants).

LICKEL v. SAME.

District Court, S. D. New York.

October 26, 1939.

Thomas D. Scoble, Jr., of White Plains, N. Y., for Morrell.

Wherry, Condon & Forsyth, of New York City, for Lickel.

Cravath, de Gersdorff, Swaine & Wood, of New York City (William W. Robison, of New York City, of counsel), for Bethlehem Steel Co.

Haight, Griffin, Deming & Gardner, of New York City (Donald Havens and David L. Corbin, both of New York City, of counsel), for United Air Lines Transport Co.

John P. Smith, of New York City, for United Aircraft Corporation.

GODDARD, District Judge.

Motions are made by the third-party defendant, Bethlehem Steel Company, to set aside third-party summonses which have been served upon it by the defendant, United Air Lines Transport Corporation, in each of the two actions. The granting of this relief is urged upon several grounds. All but two of the asserted reasons are directed to the objections that the third-party complaints fail to show any grounds for the exercise of the jurisdiction of this court over the controversy set forth in them and that in any event, as to the third-party defendant, Bethlehem Steel Company, the venue is improper.

Both cases are civil actions brought in this district under the diversity jurisdiction. Plaintiff, Morrell, is an administratrix appointed in New York County, and plaintiff, Lickel, is an administratrix appointed in Queens County. They originally brought actions against United Air Lines Transport Corporation, a Delaware corporation, for the death of their intestates who were killed when defendant's airplane crashed near Cleveland, Ohio. With differences that are not now important, the original complaints allege as one of the specifications of negligence that defendant had failed to inspect one of the plane's engines, which contained a defective cylinder. It is stated that this defect was the cause, or a contributing cause, of the accident.

Before the service of its answers, defendant, United Air Lines Transport Corporation, obtained ex-parte orders of this court under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, permitting it to serve third party summons and complaints upon Unit-of Aircraft Corporation, a Delaware corporation, and upon Bethlehem Steel Company, a Pennsylvania company, as third-party defendants. The third-party complaints contain two counts and the second count alleges, in substance, that United Aircraft Corporation was the manufacturer of the engines used in the plane and that Bethlehem Steel Company sold to the manufacturer the cylinder barrel forging which the original complaints alleged to have been defective. In addition, paragraph 13th of the third-party complaints alleges that the deaths of the passengers, pilots and stewardess were due to the negligence of the third-party defendants in the manufacture of the engine and the cylinder barrel forging. The prayer includes a demand that United Air Lines Transport Corporation recover from the third-party defendants such amounts as it may be compelled to pay as damages for the deaths of the passengers.

The third-party complaints do not set forth the citizenship of the Bethlehem Steel Company nor that of the United Air Lines Transport Corporation, although it appears from an admission in the answer of the United Air Lines Transport Corporation that it is a Delaware corporation, and from an affidavit attached to the motion papers that Bethlehem Steel Company is a Pennsylvania company. In short, the third-party complaints do not set forth the facts usually necessary for jurisdictional purposes. However, since Rule 14 of the Federal Rules of Civil Procedure became effective it uniformly has been held in situations such as the one now at bar, that the controversies presented by similar third-party complaints are properly within the ancillary jurisdiction of the court and that there is no necessity for an independent basis of jurisdiction. See Crum v. Appalachian Electric Power Co. et al., D.C., 27 F.Supp. 138; Bossard et al. v. McGwinn, D.C., 27 F.Supp. 412, 413; Kravas v. Great Atlantic & Pacific Tea Co., D.C., 28 F.Supp. 66; Tullgren v. Jasper, D.C., 27 F.Supp. 413; Satink v. Township of Holland, D.C., 28 F.Supp. 67, decided in the District of New Jersey on June 9, 1939 by Judge Forman; Lewis et al. v. United Air Lines Transport Corporation, D.C., 29 F.Supp. 112, decided in the District of Connecticut on August 18, 1939 by Judge Hincks; see also Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750, 45 A.L.R. 1370. Cf Moore's Federal Practice, p. 781 et seq.

As it appears that the causes of action set forth in these third-party complaints are ancillary to those stated in the original complaints, the objections that the third-party complaints do not set forth independent grounds for the exercise of the...