Opinion
No. 4207.
May 24, 1951.
W.A. Kahrs, Wichita, Kan. (Robert H. Nelson, Clarence N. Holeman and Keith L. Wallis, Wichita, Kan., on the brief), for appellant.
John F. Eberhardt, Wichita, Kan. (George Siefkin, George B. Powers, Samuel E. Bartlett, Carl T. Smith, Stuart R. Carter, and Robert C. Foulston, Jr., Wichita, Kan., on the brief), for appellees.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
Felkins brought this action against Transcontinental Bus System, Inc., and Zurich General Accident and Liability Insurance Company, Ltd., its insurance carrier; Fred Dailey and Hartford Accident and Indemnity Company, his insurance carrier; Arthur B. Ballah, Jr., and Fireman's Fund Indemnity Company, his insurance carrier; and George R. Henry, in the District Court of Sedgwick County, Kansas, to recover damages for the wrongful death of the mother of Felkins. Transcontinental and Zurich removed the action to the United States District Court for the District of Kansas under 28 U.S.C.A. § 1441(c). From a judgment in favor of Transcontinental and Zurich, Felkins has appealed.
We are of the opinion that a separate and independent claim or cause of action was not alleged against Transcontinental and Zurich, and that the action was improperly removed. Willoughby v. Sinclair Oil Gas Co., et al., 10 Cir., 188 F.2d 902; Snow v. Powell, 10 Cir., 189 F.2d 172; American Fire and Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534.
Accordingly, the cause is remanded, with instructions to vacate the judgment and remand the action to the state court. The mandate will issue forthwith.