Rodewald v. Phillips Petroleum Co.

• Citation: 91 F. Supp. 700
• Decision Date: 22 June 1950
• Docket Number: No. 1-51.,1-51.
• Parties: RODEWALD v. PHILLIPS PETROLEUM CO. et al.
• Court: U.S. District Court — Southern District of Iowa

91 F. Supp. 700

RODEWALD v. PHILLIPS PETROLEUM CO. et al.

No. 1-51.

United States District Court S. D. Iowa, Davenport Division.

June 22, 1950.

Emmett Patrick Delaney, Clinton, Iowa, Maxwell A. O'Brien (of Parrish, Guthrie, Colflesh & O'Brien), Des Moines, Iowa for plaintiff.

Hubert C. Jones (of Evans, Riley, Duncan, Jones & Hughes), Des Moines, Iowa, for defendants.

SWITZER, District Judge.

The suit in this case was commenced in the District Court of the State of Iowa in and for Clinton County by a petition at law which contains six separate and distinct counts with a prayer at the end of each such count for judgment in the sum of $27,337.34.

Briefly, Count I charges that the plaintiff W. C. Rodewald, a citizen of Iowa, is the owner of a 1½ story building in Clinton, Iowa, adjoining the property of the defendant Phillips Petroleum Company, a Delaware corporation, on which the said defendant owns and operates a gasoline filling station; that the storage tanks for the gasoline, kerosene and naptha products of the defendant were located above the ground and in the open; that on or about June 16, 1949, one of the defendant's storage tanks exploded and caught fire, spilling the flaming contents thereof upon the premises of the defendant and of the plaintiff, completely destroying the building of the plaintiff; that the negligence and carelessness of the defendant Phillip Petroleum Company was the proximate cause of the explosion and resultant damage; that the plaintiff is unable to set forth any specific acts of negligence or carelessness but relies upon his allegation of general negligence and carelessness under the rule of res ipsa loquitur. At the conclusion of this count, as stated, is a prayer for judgment against the Phillips Petroleum Company in the sum of $27,337.34.

Count II recites the material facts of Count I, but in addition thereto alleges that John T. McGauvran operated upon the said property of the Phillips Petroleum Company in Clinton, Iowa, a filling station under a written contract with that corporation, that he died on the day of the explosion, June 16, 1949, that the proximate cause of the loss and damage to the plaintiff and his property was the negligence and carelessness of the said John T. McGauvran, and alleging as in Count I that plaintiff relies upon his allegation of general negligence and carelessness under the rule of res ipsa loquitur. The prayer as stated for this Count II is for judgment in the same amount as in Count I against the administratrix of the estate of John McGauvran, which estate is being administered in Clinton County, Iowa.

Each of the following four counts recited the same material facts as above set out and pray for the same amount of damages, but lay the alleged liability against the Phillips Petroleum Company and the estate of John T. McGauvran jointly on the claim —

in Count III, that the operation of the said station and the storage by the said defendants of the gasoline, kerosene and naptha was in violation of an ordinance of the city of Clinton, Ia., and was a nuisance, which nuisance proximately caused the destruction of plaintiff's building and caused damage, as prayed against the defendants, in the said amount;

in Count IV, that the failure of the two defendants to safely store and keep on the premises the said gasoline, kerosene and naptha in conformity to the said City Ordinance made them liable for the resultant damage caused by the explosion and in the said amount;

in Count V, that by reason of the nature of the surroundings, buildings and location, the storing of such large quantities of these highly explosive substances made the two defendants here jointly and severally guilty of maintaining a nuisance and by reason of said acts the explosion occurred and the damages resulted in the amount as again prayed of $27,337.34; and

in Count VI, that the said defendants jointly and severally kept the said dangerous and explosive substances on the premises of the Phillips Petroleum Company in violation of the provisions of the statutes of the State of Iowa relating to nuisances and thus illegally exposed the property of the plaintiff to the said dangers, resulting in the destruction of plaintiff's property, for which he demands judgment against the said defendants in the same amount of $27,337.34.

The nonresident defendant duly removed the action to this court under the provisions of Section 1441(c), Title 28 U.S. C.A., on the ground that the petition had joined therein a separate and independent claim in Count I thereof which would be removable if sued upon alone.

Plaintiff's motion to remand, which we are now considering, denies that there is any such joinder and asserts that the foreign corporate defendant and the Iowa defendant, the administratrix, are liable to the plaintiff for their joint and concurrent negligence, as set out in the several counts of the petition, and that there is but one claim therein alleged and the liability of the defendants cannot be separated so as to authorize the removal of this cause.

Sec. 1441(c), Title 28 U.S.C.A., provides: "Whenever a separate and independent claim or cause of action, which would be removable if sued...