Watson v. Chevrolet Motor Co. of St. Louis

• Decision Date: 26 February 1934
• Docket Number: No. 9737.,9737.
• Citation: 68 F.2d 686
• Parties: WATSON v. CHEVROLET MOTOR CO. OF ST. LOUIS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

68 F.2d 686 (1934)

WATSON v. CHEVROLET MOTOR CO. OF ST. LOUIS et al.

No. 9737.

Circuit Court of Appeals, Eighth Circuit.

January 22, 1934.

Rehearing Denied February 26, 1934.

William T. Thompson, of Richmond, Mo. (David A. Thompson, of Richmond, Mo., and Davis & Davis, of Kansas City, Mo., on the brief), for appellant.

David L. Sheffrey, of Kansas City, Mo. (Arthur Miller, Alton Gumbiner, Roscoe C. Van Valkenburgh, and Sidney J. Brick, all of Kansas City, Mo., on the brief), for appellees.

Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This is a suit against appellees in the sum of $50,200 for personal and property injuries alleged to have been sustained by appellant, who was driving his automobile south on highway No. 13 in Caldwell county, Mo., at a point of intersection with a by-road on which the individual defendant appellees, Gregory and Cooper, were driving. A collision occurred, causing the injuries sued for.

The petition alleges that the Chevrolet Motor Company maintained a billboard on the north side of highway Number 13, starting at the grader ditch in said highway, "and together with other billboards extending back about thirty-five or forty feet on the said by-road, running east and west, obstructing the view of the plaintiff on Number 13, and defendants on said by-road."

The negligence charged against the individual appellees is thus stated:

"1. That the defendants, Charles Gregory and Ross Cooper negligently and carelessly failed to give plaintiff any warning of their approach.

"2. That the defendants, Charles Gregory and Ross Cooper, carelessly and negligently drove Gregory's car to the left of the center of the intersection of the said highways.

"3. That the defendants, Charles Gregory and Ross Cooper, negligently and carelessly failed to stop Gregory's car before driving upon highway No. 13 which has a great deal of traffic."

The negligence charged against the Chevrolet Motor Company is that it negligently and carelessly maintained a billboard on the north side of said byroad without the written consent of the Missouri state highway commission, and after it had been notified by said commission to remove the same. That the billboard, or boards, thus maintained, prevented plaintiff, appellant, from seeing the approach of the individual defendants in time to have avoided the collision.

The plaintiff and individual defendants are citizens and residents of the state of Missouri. The Chevrolet Motor Company is a corporation organized under the laws of Delaware, and a citizen of that state, and procured the case to be removed to the District Court of the United States for the Western District of Missouri on the ground of diversity of citizenship and separable controversy. A motion to remand was overruled. Thereafter the Chevrolet Company filed a demurrer to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained; an amended petition was filed; and a second demurrer sustained. Error is assigned to both rulings of the District Court. We find it necessary to consider only the ruling upon the motion to remand.

"When the plaintiff's petition states a case of joint liability in tort under the state law against a resident and a nonresident defendant and the petition to remove the case on the ground that it contains a separable controversy fails to aver facts showing that the joinder is fraudulent, the District Court must remand." McAllister, Administratrix, v. Chesapeake & Ohio Railway Company, et al., 243 U. S. 302, 37 S. Ct. 274, 61 L. Ed. 735.

The question of joint or several liability is to be determined by the local law. Kelly v. Robinson et al. (D. C.) 262 F. 695, 697, and cases cited. Whether a case could ultimately be found against the nonresident defendant is immaterial on the question of removal if the joinder was not fraudulent. Illinois Central R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208. In the case before us there was neither allegation nor proof of fraudulent joinder.

The Missouri rule respecting joint liability resulting from injuries sustained through concurring negligence is thus stated: "Where one is injured from separate negligent acts of different persons, a recovery from either one or both of the tortfeasors whose negligence concurred in and contributed to his injury may be had." Miller v. United Railways Company, 155 Mo. App. 528, 134 S. W. 1045.

In joining two such defendants, the central and controlling thought is that the several negligent acts co-operated to produce a single result. Reynolds v. Metropolitan St. R. Co., 180 Mo. App. 138, 144, 168 S. W. 221. Among other Missouri cases in which such joint liability has been sustained are Schwyhart v. Barrett et al., 145 Mo. App. 332, 130 S. W. 388; Whiteaker v. Chicago, R. I. & P. R. Co., 252 Mo. 438, 160 S. W. 1009; Fleming v. Railroad Co., 263 Mo. 180, 172 S. W. 355; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.(2d) 543, and Wright v. Railway Company, 327 Mo. 557, 37 S.W. (2d) 591.

Where the complaint in an action of tort, reasonably construed, charges concurrent negligence, the controversy is not separable, the question is to be determined by the condition of the record in the state court where the removal petition is filed, the cause of action is whatever the plaintiff, by his pleading, declares it to be, and matters of defense furnish no ground for removal. Chesapeake & Ohio Railway Co. v. Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121; Chicago, R. I. & Pacific R. Co. v. Martin, 178 U. S. 245, 20 S. Ct. 854, 44 L. Ed. 1055; Powers v. Chesapeake & Ohio R. Co., 169 U. S. 92, 97, 18 S. Ct. 264, 42 L. Ed. 673; Nelson v. Arcade Investment Co. (D. C.) 30 F.(2d) 695.

Judge Cooley in his Work on Torts (3d Ed.) p. 247 says: "The weight of authority will, we think, support the more general proposition that, where the negligence of two or more persons concur in producing a simple, indivisible injury, then, such persons are jointly and severally liable, although there was no common duty, common design, or concert of action."

And in 26 Ruling Case Law, 764, the rule is thus stated: "There is a class of cases in which the defendants are jointly and severally liable, although they are several and not joint tort-feasors, as where there is no concert of action or unity of purpose, but the acts are concurrent as to place and time, and unite in setting in operation a single destructive and dangerous force which produces the injury. * * * If their acts are separate and distinct as to place and time, but culminate in producing a public nuisance, which injures the person or property of another, they are jointly and severally liable." See Bunker Hill, etc., Mining Company v. Polak (C. C. A. 9) 7 F.(2d) 583, 584.

The facts stated in the original petition filed in the state court point to the conclusion that the several acts of negligence, if sustained by the proofs and supported by the applicable law, concurred to cause, or contribute to, the injuries alleged to have been sustained. The main contention of appellees is that the petition did not in terms state that the several negligent acts alleged concurred to produce those injuries; and that such an allegation is...