Opinion
Docket No. 25, Calendar No. 48,043.
Decided June 6, 1960.
Appeal from Wayne; Culehan (Miles N.), J. Submitted January 6, 1960. (Docket No. 25, Calendar No. 48,043.) Decided June 6, 1960.
Case by Insurance Company of North America Companies, a Pennsylvania corporation, subrogee, and Truck Transport Company, Inc., a Michigan corporation, against Canadian National Railway Company, a Canadian corporation, arising from collision in Ontario, in which service of summons was made on ticket agent operating as employee of connecting railroad line. Motion to dismiss granted. Plaintiff appeals. Remanded.
Earl T. Prosser ( Ballantine, Kennedy Huhn and Carl W. Huhn, of counsel), for plaintiff.
Robert L. Livesay, for defendant.
Our attention has been called to a decision which no party has seen fit to cite or mention ( Truck Transport Co. v. Canadian National Railways, 168 F. Supp. 619). Since respective counsel are the same in both cases, I am led to wonder whether this Court is not being agreeably "used" to second-guess District Judge Thornton's decision in Truck Transport and, further, whether that decision was called to the attention of Judge Culehan when he concluded that the defendant's motion to quash and dismiss — in the present case — should be granted.
Investigation discloses that one of the above plaintiffs (Truck Transport, Inc.) originally sued Canadian National, for the apparent same cause, in the United States district court, ED Michigan SD, and that the suit so instituted is still pending by virtue of a special order of Judge Thornton, entered September 25, 1959, quoted as follows:
"Counsel for the respective parties having advised the court that a case related to the instant case is presently pending on appeal before the Michigan Supreme Court, and counsel having further advised the court that it is anticipated that disposition will not be made of said case for a period of approximately 6 months, therefore
"It is ordered that this case be, and it is hereby, placed on the suspended docket of this court."
If the cause is the same, and so it appears from comparison of the appendices and briefs in the present case with Judge Thornton's opinion of Truck Transport, supra, then the circuit court case should be dismissed for the reason given in paragraph 8 of the affidavit defendant has attached to its motion; that of pendency of another suit between the same parties for the same cause. See Court Rule No 18, § 1(d) (1945). However, there being possible doubt upon the question — of identity of suit pending "for the same cause" — , I would remand for determination of that question and for such further proceedings as to Judge Culehan may be indicated.
It is but fair to note that Judge Thornton's opinion (shown in Truck Transport, supra) bears date of October 20, 1958, and that Judge Culehan's order granting defendant's motion to quash and dismiss was entered but 2 days later. From this I suspect that Judge Culehan was unaware of the district court order and ultimately reported opinion; also that he was unaware on the date of his decision that a like cause was pending in the district court. Otherwise, doubtless, Judge Culehan would have ascertained the facts necessary to determination of applicability of said Rule No 18.
The fact that the plaintiff insurer has joined as a party to the suit, and is not a party to the suit pending in the district court, will make no difference if, as it now appears, a part of the cause sued upon in the district court has meanwhile been assigned to such insurer. The latter in such event stands in the shoes of its assignor, there being 2 feet — of assignor and assignee respectively — in each shoe.
I vote to remand accordingly, leaving the question of costs to abide the final result below.
DETHMERS, C.J., and CARR, KELLY, SMITH, EDWARDS, KAVANAGH, and SOURIS, JJ., concurred.