Morris v. Argo-Collier Truck Line
| Decision Date | 02 July 1941 |
| Docket Number | Civ. No. 100. |
| Citation | 39 F. Supp. 602 |
| Parties | MORRIS v. ARGO-COLLIER TRUCK LINE et al. |
| Court | U.S. District Court — Western District of Kentucky |
F. B. Martin, of Mayfield, Ky., for plaintiff.
Finley F. Gibson, Jr., of Louisville, Ky., for defendants Collier & Weldon.
The plaintiff, administratrix of the estate of Jim Morris, deceased, brought this action against the defendants Ruben Collier, and Clifford Weldon, doing business as the Argo-Collier Truck Lines, Isham Brooks and Bill Higgs to recover damages in the amount of $17,850 for injury to property and for the death of Jim Morris resulting from an automobile accident in Graves County, Kentucky. The petition alleges that the accident was caused by the negligent operation of a truck by Higgs as the employee of the partnership. The truck was owned by Brooks, who was a resident of Illinois, and was being operated under a lease contract from Brooks to the partnership. The partners Collier and Weldon, and also Higgs, the operator of the truck, were residents of Tennessee. The plaintiff is a resident of Kentucky. The defendants Collier and Weldon filed their petition for removal to the U. S. District Court which was sustained by the order of the Graves Circuit Court. The plaintiff has moved that the action be remanded to the State Court on the ground that no separate controversy exists between the plaintiff and any one of the four defendants, and that it is accordingly necessary in order to remove the action to the Federal Court that all of the defendants join in the petition for removal. The defendants Brooks and Higgs did not join in the petition.
The rule is well settled that where a State Court action against several defendants is subject to removal all the defendants who are necessary parties must join in the removal proceedings, if the action presents a nonseparable controversy as to all of the defendants. Chicago, Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Gableman v. Peoria, Decatur & Evansville Ry. Co., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220; Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Bailen v. Deitrick, 1 Cir., 84 F.2d 375; Belcher v. Aetna Life Ins. Co., D.C.W.D. Tex., 3 F.Supp. 809; Hillis v. Rice, D.C.E.D.Mo., 25 F.Supp. 813. In a tort action of this nature no separable controversy exists between the plaintiff and any of the defendants. Gableman v. Peoria, Decatur & Evansville Ry. Co. supra; Pullman Co. v. Jenkins, supra. This rule does not apply where there is a nonseparable controversy with respect to several nonresident defendants, and the defendants who do not join in the petition for removal have not been served with process and have not entered their appearance to the action. Under these conditions the nonresident defendants who are not before the court can be disregarded and the cause can be removed if a petition for removal is joined in by all the defendants before the Court. Hunt v. Pearce, 8 Cir., 284 F. 321; Pullman Co. v. Jenkins, 305 U.S. 534, at page 540, 59 S.Ct. 347, 83 L.Ed. 334. It is therefore necessary to apply these well-settled rules to the facts of this case in order to determine whether or not the action was properly removed to the United States District Court.
The plaintiff sought to acquire jurisdiction over the nonresident defendants by proceeding under Sections 12-1 and 12-2 of the Kentucky Statutes dealing with the use of highways in Kentucky by a nonresident operator of a motor vehicle. These Sections of the statute provide in substance that any nonresident operator or owner of a motor vehicle who shall accept the privilege extended to such nonresidents of operating a motor vehicle within the Commonwealth of Kentucky shall by such acceptance and by the operation of the motor vehicle constitute the Secretary of State of Kentucky as his agent for the service of process in any civil suit instituted in the courts of Kentucky against such operator or owner arising out of any accident occurring within Kentucky. In such action the Clerk shall issue process against the defendant and direct it to the Sheriff of Franklin County, who shall execute it by delivering a true copy to the Secretary of State together with an attested copy of the petition. It shall then be the duty of the Secretary of State to write a letter to the defendant at the address...
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