Siler v. Morgan Motor Co., 1535.

• Decision Date: 03 July 1936
• Docket Number: No. 1535.,1535.
• Citation: 15 F. Supp. 468
• Parties: SILER v. MORGAN MOTOR CO. et al.
• Court: U.S. District Court — Eastern District of Kentucky

15 F. Supp. 468

SILER v. MORGAN MOTOR CO. et al.

No. 1535.

District Court E. D. Kentucky.

July 3, 1936.

Hiram H. Owens, of Barbourville, Ky., and Thomas B. Culton, of Corbin, Ky., for plaintiff.

Tye, Siler, Gillis & Siler, of Williamsburg, Ky., for defendants Chrysler Corporation and De Soto Motor Corporation.

Pope & Upton, of Williamsburg, Ky., for defendant Morgan Motor Co.

FORD, District Judge.

The plaintiff, L. S. Siler, a citizen of Kentucky, filed this action in the circuit court of Whitley county joining as defendants the Morgan Motor Company, a corporation organized and existing under the laws of Kentucky, the Chrysler Motor Corporation and the De Soto Motor Corporation, both of which are corporations organized and existing under the laws of the state of Delaware, seeking to recover $26,950 damages for personal injuries alleged to have been sustained as the result of a defectively constructed automobile.

Plaintiff alleges that the De Soto Motor Corporation is a subsidiary of and entirely owned by the Chrysler Motor Corporation and, in substance, further alleges that said corporations were engaged in the manufacture, distribution, and marketing of automobiles, including the automobile in question, for general use upon the highways and did, through their local agent and dealer, Morgan Motor Company, sell the automobile in question to the plaintiff. He alleges that the defendants were grossly negligent in the manufacture and sale of said automobile, in that they and each of them, knowing that it was constructed in such a defective manner as to be unfit and unsafe for its intended use, sold said automobile to the plaintiff for his general use and at the time of so doing not only failed to disclose, but concealed, said defects from the plaintiff.

In due time, the Chrysler Motor Corporation and the De Soto Motor Corporation, the two nonresident defendants, presented to the Whitley circuit court their petition for the removal of the cause to this court, setting out diversity of citizenship as between them and the plaintiff, asserting that the local defendant, Morgan Motor Company, is not and never was jointly engaged with the Chrysler or De Soto Corporations in the manufacture or sale of said automobile nor jointly engaged in any negligent transaction or in the commission of any tort in connection with the marketing of said automobile or otherwise; that the cause of action asserted by the plaintiff against said nonresident corporations is a "separable controversy" which is wholly between citizens of different states and is between them alone; that said controversy can be fully determined as between the plaintiff and said nonresident defendants without the presence of the Morgan Motor Company as a party in the cause; and that the said Morgan Motor Company was "fraudulently joined" in this action for the purpose of preventing its removal to this court.

The plaintiff joined issue upon the allegations set out in the petition for removal, and the lower court adjudged the petition for removal insufficient and declined to enter an order for its removal. Thereupon, the petitioning defendants filed a certified copy of the record in this court, and the plaintiff has filed a motion to remand.

The question presented relates to the jurisdiction of this court arising under the provisions of section 28 of the Judicial Code (28 U.S.C.A. § 71), which provide that when there is pending in a state court any civil suit of which the District Courts of the United States are given original jurisdiction, in which "there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district."

It seems to be well settled that an action brought in a state court against two or more defendants jointly in which the plaintiff states a case of joint liability in tort contains no separable controversy which will authorize its removal to the federal court under the provisions of the Judicial Code above referred to, even though the plaintiff might have sued the defendants separately, unless the claim of joint liability is obviously so frivolous and unsound or the facts asserted as its basis so clearly false as to disclose a mere sham or fraudulent device to prevent removal and to preclude every presumption of good faith on the part of the plaintiff.

In the case of Louisville & Nashville R. Co. v. Wangelin, 132 U.S. 599, 601, 10 S. Ct. 203, 33 L.Ed. 473, Mr. Justice Gray, delivering the opinion of the court, said: "It often has been decided that an action brought in a state court against two jointly for a tort cannot be removed by either of them into the circuit court of the United States, under the act of March 3, 1875, c. 137, § 2, upon the ground of a separable controversy between the plaintiff and himself, although the defendants have pleaded severally, and the plaintiff might have brought the action against either alone."

In the case of Powers v. Chesapeake & Ohio R. Co., 169 U.S. 92, 97, 18 S.Ct. 264, 265, 42 L.Ed. 673, the court said: "It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the circuit court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said, `A defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.'"

In the case of Breymann et al. v. Pa., O. & D. R. Co. (C.C.A.6) 38 F.(2d) 209, 210, the court said: "In determining removability the case must be deemed to be such as the plaintiff has in good faith made it in his petition. If the record discloses such good-faith assertion of a joint cause of action then such action is not separable and there can be no removal unless the claim of joint liability is obviously frivolous, specious, and unsound. Alabama Great So. Ry. Co. v. Thompson, 200 U.S. 206, 216, 218, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; Southern Ry. Co. v. Miller, 217 U.S. 209, 30 S.Ct. 450, 54 L.Ed. 732; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Chicago & A. R. Co. v. McWhirt, 243 U.S. 422, 37 S.Ct. 392, 61 L.Ed. 826. As Mr. Justice Holmes has expressed it, the court need not `consider more than whether there was a real intention to get a joint judgment and whether there was a colorable ground for it shown as the record stood when the removal was denied.' Chicago, R. I. & Pac. Ry. Co. v. Schwyhart, 227 U.S. 184, 194, 33 S.Ct. 250, 251, 57 L.Ed. 473."

The motive of the plaintiff in joining a resident defendant with the nonresident defendants in such an action is not material upon the question of the right of the latter to remove the cause, if such defendants are jointly liable.

In the case of Chicago, Rock Island & Pac. Ry. Co. v. Schwyhart, supra, the court said: "The motive of the plaintiff, taken by itself, does not affect the right to remove. If there is a joint liability, he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right."

It is not claimed by the removing defendants that the petition does not state a cause of action against the nonresident corporations, nor is it claimed that the petition fails to state a cause of action against the resident defendant, the Morgan Motor Company; but it is insisted that the causes of action set up by the petition are not "joint" but are "several" only.

The question is to be determined upon the allegations of the petition as they stood at the time the defendants filed their petition for removal. Whether such allegations show a joint liability upon the part of all the defendants is to be determined by the law of the state where the action is brought. Chicago, R. I. & Pac. Ry. Co. v. Dowell, 229 U.S. 102, 113, 33 S.Ct. 684, 57 L.Ed. 1090; Alabama G. S. R. Co. v. Thompson, 200 U.S. 206, 26 S. Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; Illinois Central R. Co. v. Sheegog, 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208; Chicago, R. I. & P. Ry. Co. v. Schwyhart, supra, and Chesapeake & O. Ry. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544.

Testing the allegations of the petition in this respect by the law of Kentucky, we find the applicable rule stated in the case of Probst v. Hinesley, 133 Ky....