Scott v. Fancher
| Decision Date | 09 December 1966 |
| Docket Number | No. 23562.,23562. |
| Citation | 369 F.2d 842 |
| Parties | Carter Ray SCOTT et al., Appellants, v. William Carlton FANCHER et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Eugene Sherrod, Jr., Wichita Falls, Tex., Albert P. Smith, Lubbock, Tex., William T. Brownlee, Perryton, Tex., Eugene Sherrod, Jr., Nelson & Sherrod, Wichita Falls, Tex., for appellants.
Royal H. Brin, Jr., Dallas, Tex., C. Coit Mock, Wichita Falls, Tex., J. Mike Joplin, Dallas, Tex., Strasburger, Price, Kelton, Miller & Martin, Dallas, Tex., for appellees, William Carlton Fancher, American Petrofina Co. of Texas and United States Fire Ins. Co.
Donald Royse, Royse & Meacham, Elk City, Okl., Larry Lambert, Jones, Fillmore, Robinson & Lambert, Wichita Falls, Tex., for appellees E. L. Short and wife, Sarah Short, individually and E. F. Short, administrator of the estate of Tommy Clifton Short, deceased.
Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.
This personal injury case arose out of a three truck collision involving trucks operated by William C. Fancher, a Texas resident, Ray Scott, an Oklahoma resident, and E. F. Short, an Oklahoma resident. The collision took place in Texas. The truck driven by Fancher was traveling north on U. S. Highway 287 and the two Oklahoma trucks were traveling south. The truck driven by Fancher was owned by American Petro-Fina Company of Texas (Petro-Fina), a corporation organized under the laws of Texas. As a result of a head-on collision between the Petro-Fina truck and the Scott truck, the Petro-Fina truck turned on its side, slid across the highway and collided with the truck driven by Short which had been traveling some distance behind and in the same direction as the Scott truck. Fancher was seriously injured and Short was killed in the accident. Scott suffered only mild injuries. The administrator of Short's estate brought suit against Fancher, Petro-Fina, and Scott in an Oklahoma state court. Service of process was not perfected on Fancher in the Oklahoma state court action. Petro-Fina and Fancher filed this suit in the United States District Court for the Northern District of Texas alleging negligence on the part of both Scott and Short. Scott counterclaimed against Petro-Fina and Fancher, and the administrator of Short's estate filed a counterclaim against Petro-Fina and Fancher and a cross-claim against Scott. Jurisdiction was based on diversity of citizenship. The jury absolved Fancher, Petro-Fina, and Short of liability and returned a verdict against Scott. Judgment was entered against Scott in accordance with the verdict. Scott appeals from that judgment alleging that the district court was without jurisdiction as to both the original action and the cross-claim by Short's administrator against Scott, because the requisite diversity of citizenship was lacking; and further, that the testimony of one of his witnesses, presented as an expert, should have been admitted.
Scott asserts that a proper alignment of the parties would cast Scott and Short as opposing parties because under no theory of the facts could Short have been found at fault. Thus, he concludes, the district court was without jurisdiction because Short and Scott are both Oklahoma residents. Re-alignment of the parties is to be accomplished on the basis of the facts available at the commencement of the action. Petro-Fina and Fancher had charged both Scott and Short with negligence and at that time it could not be said that the allegations were baseless. Accordingly, no re-alignment was required. Texas Pac. Coal & Oil Co. v. Mayfield, 152 F.2d 956 (5 Cir. 1946).
We also reject Scott's contention that Short's cross-claim against Scott was not ancillary to the original suit and therefore required an independent jurisdictional base. Short's cross-claim arose out of the same transaction and involved the same parties as did the original action. In such cases jurisdiction rests with the primary suit. Childress v. Cook, 245 F.2d 798 (5 Cir. 1957); Collier v. Harvey, 179 F.2d 664 (10 Cir. 1949).
Scott further argues that since there was an action pending in the...
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