Opinion
July 23, 1927.
Rounds, Dillingham, Mead Neagle, of New York City, for plaintiff.
Chas. Franklin, of New York City, for defendant Southern Pac. Co.
White Case, of New York City, for defendant Great Northern Ry. Co.
Howard C. Kelly, of New York City, for defendant Mitsubishi Shoji Kaisha.
At Law. Action by the Best Foods, Inc., against Mitsubishi Shoji Kaisha, Limited, and others. On motion to remand to the state court.
Motion granted.
See, also, 39 F.2d 620.
The complaint includes in its allegations: "XVI. That the leakage and loss of said peanut oil was caused either by a defect in the construction of or the defective condition of said tank car at the time that it was loaded with said peanut oil by or in behalf of the defendant, Mitsubishi, or by the wrongful, negligent and careless handling thereof by the defendant, Great Northern Railway Company, or by the wrongful, negligent and careless handling thereof by the defendant, Southern Pacific Company, or by a combination of said causes."
The plaintiff seeks to recover in but a single cause of action, and there is but a single controversy, though each of the defendants may have a separate defense. The pleadings, in substance, allege that the loss sustained by the plaintiff was due to the fault of one of the defendants or to one or more of them acting in concert or was due to their concurrent negligence. Separable controversies within the meaning of section 28 of the Judicial Code (28 USCA § 71) are not presented. Louisville Nashville Rd. Co. v. Ide, 114 U.S. 52, 5 S. Ct. 735, 29 L. Ed. 63; Starin v. New York, 115 U.S. 248, 6 S. Ct. 28, 29 L. Ed. 388; Torrence v. Shedd, 144 U.S. 527, 12 S. Ct. 726, 36 L. Ed. 528; Chicago, Rock Island Pacific Ry. Co. v. Dowell, 229 U.S. 102, 33 S. Ct. 684, 57 L. Ed. 1090; Fraser v. Jennison, 106 U.S. 191, 1 S. Ct. 171, 27 L. Ed. 131.
Accordingly, the motion to remand to the state court is granted. Settle order on notice.