National Farmers Union Property & Cas. Co. v. Fisher
| Decision Date | 08 December 1960 |
| Docket Number | No. 16427.,16427. |
| Parties | NATIONAL FARMERS UNION PROPERTY & CASUALTY CO., Appellant, v. Leo FISHER, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ira C. Peterson, Jr., Minneapolis, Minn., Robert J. Healy, Minneapolis, Minn., on the brief, for appellant.
Miles B. Zimmerman, Mankato, Minn., Robert J. Sheran, Mankato, Minn., on the brief, for appellee.
Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.
This is an appeal from a judgment for the defendant, Leo Fisher (appellee), in an action brought against him by the National Farmers Union Property & Casualty Co., of Utah, (hereafter referred to as "National") upon the claim that it was entitled to contribution from him for one-half of $20,250 which it had paid to Robert J. Murray in settlement of a personal injury action brought by Murray against John Koppi and Robert Ackerman, growing out of an automobile collision in which both Ackerman and Fisher were involved. Jurisdiction was based upon diversity of citizenship and amount in controversy. It was tried to the court with a jury, which returned a verdict upon which judgment for the defendant was entered.
The complaint alleged diversity of residence, rather than diversity of citizenship. The record as a whole is convincing that diversity of citizenship did in fact exist. We feel justified in treating the complaint as having been amended to conform to the proof in that regard. We shall appreciate it if the trial judges will carefully scrutinize, and have corrected if necessary, those allegations of the pleadings which are essential to establish federal diversity jurisdiction in cases such as this. See Texaco-Cities Service Pipe Line Co. v. Aetna Casualty & Surety Co., 8 Cir., 283 F.2d 144.
The facts in this case are not in dispute. National was the automobile liability insurer of John Koppi and anyone driving his car with his consent. On May 29, 1954, the Koppi car, while being driven by Robert Ackerman with Koppi's consent, collided head-on with a car driven by Leo Fisher on a public highway in Murray County, Minnesota. The occupants of both cars were injured. Two passengers in the Koppi car, Carter and Barrie, each brought an action in the State District Court for Murray County against both Fisher and Ackerman (and Koppi) to recover damages for personal injuries resulting from the collision. Fisher, in the State court actions cross-claimed for his injuries against Ackerman, and Ackerman cross-claimed for his injuries against Fisher. Each asserted that the other's negligence was the cause of the collision. The State court actions were consolidated for trial, and tried to a jury on April 11-13, 1956. The jury determined that both Ackerman and Fisher were negligent, that the collision was the result of their concurrent negligence, that neither was entitled to recover damages from the other, and that they were jointly and severally liable to Carter and Barrie for damages. Judgment was entered on the verdict or verdicts.
In its complaint in the instant case, filed March 26, 1959, National alleged that subsequent to the collision, Robert J. Murray, who was a passenger in the Fisher car, brought an action in the federal District Court against John Koppi and Robert Ackerman to recover damages for the personal injuries Murray sustained in the collision; that National on June 8, 1955, on behalf of its insured, Koppi and Ackerman, paid Murray $20,250 in settlement of his action, and thereby became subrogated to the rights of Koppi and Ackerman against Fisher for contribution; that the negligence of Fisher in the operation of his car contributed to Murray's injuries; and that in an action brought in State court against both Ackerman and Fisher by Wayne Carter, a passenger in the Koppi car, for injuries sustained by him in the collision, Ackerman and Fisher each had cross-claimed against the other for their respective injuries (paragraph VIII of the complaint). The complaint contained the following paragraph numbered IX:
"That said action by Wayne Carter against Robert Ackerman and Leo Fisher was tried to a jury at Slayton, Minnesota April 11, 12 and 13, 1956 and resulted in verdicts in favor of Wayne Carter against defendants Ackerman and Fisher, and findings by the jury in answer to special Interrogatories that both Robert Ackerman and Leo Fisher were negligent in the operation of the automobile of each at the time and place of the accident and that the negligence of each was a proximate cause of the collision; that judgments were entered against each of said defendants upon his crossclaim against the other defendant; that said proceedings are res adjudicata of the rights of plaintiff against defendant for contribution for one-half the amount plaintiff paid said Robert J. Murray on behalf of John Koppi and Robert Ackerman."
The answer of Fisher, filed April 24, 1959, denied that the accident was caused by his negligence, and denied that the verdict and judgment in the State court action by Carter could be or was res judicata.
On May 26, 1959, Fisher filed a motion to strike the allegations of paragraphs VIII and IX of the complaint. On August 7, 1959, the trial court granted the motion. On August 20, 1959, the plaintiff moved for leave (1) to reargue the motion to strike those paragraphs of the complaint; (2) to amend paragraph IX of the complaint to read as follows:
"That said actions by Robert Ackerman against Leo Fisher and by Leo Fisher against Robert Ackerman, each for their injuries and damages, were tried to a jury at Slayton, Minnesota, April 11, 12, and 13, 1956 and resulted in verdicts and findings by the jury in answer to special Interrogatories that both Robert Ackerman and Leo Fisher were negligent in the operation of each of their automobiles at the time and place of the accident and that the negligence of each was a proximate cause of the collision; that judgments were entered against Robert Ackerman and Leo Fisher upon the Cross-Claim of each against the other; that by virtue of said proceedings, defendant Leo Fisher herein is estopped to deny the allegations of this Complaint that he was negligent in the operation of his automobile at the time and place of...
To continue reading
Request your trial
-
Yarbrough v. Blake
...court in Texaco-Cities Service Pipe Line Co. et al. v. Aetna Casualty & Surety Co., supra, and in National Farmers Union Property & Casualty Co. v. Fisher (8th Cir., 1960), 284 F.2d 421. The court did not acquire jurisdiction of the instant case upon the filing of the petition for removal a......
-
State Highway Commission of Missouri v. Volpe
...to conform to this fact and proceed to review the district court's judgment on the merits. See also National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421, 423 (8 Cir. 1960) ; Parker v. Gordon, 178 F.2d 888, 890 n. 2 (1 Cir. 1949). JUSTICIABILITY In view of our finding as to......
-
Dranow v. United States
...Caterpillar Tractor Company v. International Harvester Co., 120 F.2d 82, 139 A.L.R. 1 (3 Cir. 1941); National Farmers Union Property & Casualty Co. v. Fisher, 284 F.2d 421 (8 Cir. 1960); and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). For reasons that will he......
-
Nuevos Destinos, LLC v. Peck
...that alleged diversity of residence rather than diversity of citizenship under 28 U.S.C. § 1332 ); Nat'l Farmers Union Prop. & Cas. Co. v. Fisher, 284 F.2d 421, 422–23 (8th Cir. 1960) (same). Rather, Appellants seek to amend entirely the jurisdictional basis for their remaining state law cl......