Olsen v. Jacklowitz

• Decision Date: 07 January 1935
• Docket Number: No. 166.,166.
• Citation: 74 F.2d 718
• Parties: OLSEN v. JACKLOWITZ et al.
• Court: U.S. Court of Appeals — Second Circuit

74 F.2d 718 (1935)

OLSEN v. JACKLOWITZ et al.

No. 166.

Circuit Court of Appeals, Second Circuit.

January 7, 1935.

James J. Mahoney, of New York City (James J. Mahoney, George J. Stacy, and Frederick L. Thielmann, all of New York City, of counsel), for appellant Shell Eastern Petroleum Products, Inc.

Richard M. Cantor, of New York City, for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The plaintiff, a citizen of New York, brought this suit against Pearl Jacklowitz, also a New York citizen, residing in the Eastern district, and Shell Eastern Petroleum Products, Inc., a Delaware corporation doing business in the same district of New York, to recover for personal injuries received because of the alleged negligence of the defendants when he was struck by an automobile owned by defendant Jacklowitz and operated by her husband on a public highway in Brooklyn, N. Y. It was alleged that the defendant Shell Eastern Petroleum Products, Inc., had negligently parked a truck so as to obstruct traffic in the highway, and that the automobile of the defendant Jacklowitz negligently passed the parked truck and hit the plaintiff.

At the close of a jury trial a verdict was returned for the plaintiff against Jacklowitz; Shell Eastern Petroleum Products, Inc., being found not liable. On December 7, 1933, the plaintiff had judgment on the verdict against Jacklowitz, and Shell Eastern Petroleum Products, Inc., had judgment to recover its costs. On December 27, 1933, an order to show cause why the judgment against Jacklowitz should not be set aside on the ground of lack of jurisdiction was issued. Eastern Shell Petroleum, Inc., thereupon moved for a severance. After hearing the parties, the motion for severance was denied, judgment against Jacklowitz and in favor of Shell Eastern Petroleum Products, Inc., set aside, and the complaint was dismissed for lack of jurisdiction. Shell Eastern Petroleum Products, Inc., alone has appealed.

The appellant, being a defendant in an action in tort which has been terminated by a dismissal of the complaint for want of jurisdiction, can take nothing on this appeal unless it appears that the judgment in its favor was less conclusive in its effect than one to which it was entitled, for otherwise none of its legal rights have been invaded.

The suit as brought was not within the jurisdiction of the District Court. The only possible ground of such jurisdiction was diversity of citizenship, and the complaint itself showed that the plaintiff and one of the two defendants alleged to have been joint tort-feasors were residents of the same state. That allegation was correct, and ever since Strawbridge et al. v. Curtiss et al., 3 Cranch, 267, 2 L. Ed. 435, the law has been too well settled on this point to leave the question of jurisdiction even debatable. See Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 4 S. Ct. 510, 28 L. Ed. 462. With such parties to the action, the judgment of necessity had to be set aside. The plaintiff could undoubtedly have sued Shell Eastern Products, Inc., alone in the District Court. We may assume arguendo that, even after the suit was brought as it was, he could have discontinued as to Jacklowitz and proceeded against the nonresident defendant. See Thomas v. Anderson (C. C. A.) 223 F. 41. But he did not attempt that. On the contrary, he opposed the effort of Shell Eastern Petroleum Products, Inc., to bring about a severance...