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O'NEAL v. NATIONAL CYLINDER GAS CO.

March 5, 1952

O'NEAL ET AL.
v.
NATIONAL CYLINDER GAS CO. ET AL.



The opinion of the court was delivered by: Perry, District Judge.

  On February 21, 1950, the plaintiffs filed a suit in the United States District Court, wherein they sought recovery for personal injuries and property damage and for wrongful death from Malton A. Teeter, Evelyn M. Teeter doing business as the Long Beach Welder's Supply, O.B. Bowers, K.R. Arnold and Don Bowers doing business as the Bowers Ambulance Service, National Cylinder Gas Company, National Cylinder Gas Company — Pacific Coast, Bastian-Blessing Co. and the Linde Air Products. The plaintiffs are residents of the State of California; they alleged that all defendants were nonresidents of California jurisdiction of the federal court was based upon diversity of citizenship. 28 U.S.C.A. § 1332.

This complaint, founded upon a theory of injury through negligence, alleged that on or about February 28, 1948, the plaintiffs purchased a Rego regulator "for the express and implied purpose of being used by said plaintiffs as a regulator for the controlling of the flow of oxygen gas" from Long Beach Welders Supply; that on or about the same day plaintiffs rented from Bowers Ambulance Service a certain portable oxygen metallic cylinder "for the express and implied purpose of being used by said plaintiffs with the Rego regulator and which said cylinder was supposed to contain oxygen gas under pressure;" that on and prior to February 28, 1948, the Linde Air Products Company was in the business of manufacturing, distributing, selling and supplying portable oxygen metallic cylinders to the Bowers Ambulance Service; that on and prior to February 28, 1948, the defendant National Cylinder Gas Company, National Cylinder Gas Company — Pacific Coast and the Bastian-Blessing Company were in the business of manufacturing, distributing, selling and offering for use to the public a certain oxygen gas pressure regulating device known as the Rego Low Pressure Regulator; that, on February 28, 1948, the plaintiffs and decedent W.L. Lowrance were traveling in an automobile at or near the City of Gila Bend, Arizona; that W.L. Lowrance was ill at the time and required medicinal oxygen which could be given to him at low pressure and there was carried in said automobile the aforementioned metallic cylinder; upon the first occasion of opening the valve of said cylinder for the purpose of admitting oxygen through the regulator, there was a violent fire and explosion which destroyed the automobile and caused severe injuries to the plaintiffs, and which caused the death of W.L. Lowrance on March 9, 1948 in the County of Maricopa and State of Arizona.

On February 7, 1951, the District Court, pursuant to Rule 21 of the Federal Rules of Civil Procedure, 28 U.S.C.A., sustained the plaintiffs' motion to dismiss and overruled the defendant's motion to quash and to dismiss. This order was based upon the legal principle that the duties owed to a third party by a dealer are different from those owed by a manufacturer; and, consequently, the liabilities of the parties are not joint but several.

On February 15, 1951, the plaintiffs, pursuant to leave of court, filed an amended complaint, wherein they seek recovery only from the defendant corporations. In the amended complaint, the plaintiffs make the same allegations with the following exception. In the original complaint of February 21, 1950, Gillis O'Neal is named, in the caption as plaintiff but he alleged no harm and prayed for no relief. In paragraph eleven of Count I of the amended complaint of February 15, 1951, he claims loss of consortium and prays for damages.

All defendants have filed motions to dismiss both counts of the amended complaint on the ground that the actions are barred by the statute of limitations.

In Arizona, a two year period of limitations is prescribed in actions for personal injuries. Arizona Code Annotated Sec. 29-202(1). The same period of limitations is prescribed in the State of Illinois. Illinois Revised Statutes, Ch. 83, Sec. 15.

The Arizona death statute does not include a period of limitations. Arizona Code Annotated, Sec. 31-101. Under Sec. 29-201(3), a one year period of limitations is provided for the bringing of an action "upon a liability created by statute, other than a penalty or forfeiture." Under Sec. 29-202(5), a two year period is provided for the bringing of an action for "Injuries done to the person of another where death ensued from such injuries, which action shall be considered as having accrued at the death of the party injured." In Illinois, the period of limitation for the bringing of an action for wrongful death is one year. Illinois Revised Statutes, Ch. 70, Sec. 2.

The basic contention of the defendant corporation rests upon the theory that, until March 24, 1950, when the plaintiffs moved to dismiss the individual defendants, residents of California, the requisite diversity of citizenship was not present in this action, and, consequently the District Court was without jurisdiction of any of the defendants. Therefore, the filing of this action on February 21, 1950, in the District Court, which was without jurisdiction, was not a commencement of a suit as would toll the running of the period of limitations. This court recognizes the order of dismissal, entered by the United States District Court on February 7, 1951, pursuant to Rule 21 of the Federal Rules of Civil Procedure; it has no intention of readjudicating the issues presented by those motions. At this state of the litigation, however, the defendants contend that the earliest date on which the jurisdiction of the federal court could attach as to the corporate defendants was March 24, 1950. In effect, they argue that the order of dismissal under Rule 21 of the individual California defendants had no retroactive effect upon the jurisdiction of the present corporate defendants. If this position is correct, all claims would be barred, regardless of which period of limitations would be applicable, since the attachment of federal jurisdiction on March 24, 1950, would not have occurred soon enough as to constitute a commencement of an action within two years of the dates of injury and of death, February 28, 1948, and March 9, 1948, respectively.

In support of their position, the defendants advance the proposition that the jurisdiction of the United States District Court when it is founded upon the diversity of citizenship, is determined as of the time of commencement of the suit and it is not to be affected by a subsequent change of parties. They cite a number of cases including Stewart v. Dunham, 115 U.S. 61, 5 S.Ct. 1163, 29 L.Ed. 329, and Anderson v. Watts, 138 U.S. 694, 11 S.Ct. 449, 34 L.td. 1078. This proposition is correct insofar as it relates to the indispensable parties to a lawsuit. In the determination of jurisdiction of the federal District Court on the ground of diversity of citizenship, only indispensable parties are considered. Jones v. Box Elder County, 10 Cir., 52 F.2d 340, certiorari denied, 285 U.S. 555, 52 S.Ct. 456, 76 L.Ed. 944. A careful examination of the cited cases will disclose that this distinction is made therein. In the case before the bar, the liability of the individual California defendants as dealers was distinct from that of the defendant corporations as manufactures. The liabilities of the parties were not joint but several. The individual California defendants were not indispensable parties to the action against the defendant corporations as manufacturers.

Accordingly, this Court rules that it had jurisdiction of the defendant corporations on February 21, 1950, when the original action was filed, and that this constituted a commencement of a suit as would toll the running of the period of limitations.

1. Count I of the amended complaint embodies the claims of Gladys O'Neal, Ronald L. O'Neal and Clint L. Lowrance for personal injuries. The period of limitations on actions for injuries to the person, both in Arizona and Illinois, is two years. The alleged injuries were sustained on February 28, 1948, and this action was brought on February 21, 1950, within the two year period. Therefore, the claims of Gladys O'Neal, Ronald L. O'Neal and Clint L. Lowrance are not barred by the statute of limitations.

In paragraph eleven of Count I of the amended complaint, Gillis L. O'Neal sets out a claim for loss of consortium. It will be recalled that his name appeared in the caption of the original complaint but he did not claim any harm and pray for any relief. He was in no position to prosecute the lawsuit, and therefore did not become a party, until February 15, 1951, when the amended complaint was filed. This was almost three years after his cause of ...


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