The opinion of the court was delivered by: DUSEN
In this personal injury action by a stevedore against the owner and operator of the ship on which he was working when the payloader (brought aboard by his employer) he was driving went over the side of the hatch opening at the 'tween deck level into the lower hold below, the employer of the stevedore has been joined as a third-party defendant on the ground that, if the averments of the Complaint are established, it is obligated to indemnify defendant for any amounts which defendant shall be required to pay as the result of the principal action by plaintiff against defendant. The principal items of fault alleged by plaintiff in the record as constituting unseaworthiness and negligence are:
1. 'Faulty' brakes on the payloader.
2. An absence of caplogs around the hatch coaming (see pages 1 and 2 of plaintiff's pre-trial memorandum, being Document No. 10).
These allegations are denied by defendant. Third-party defendant (hereinafter called 'Jarka') denies any fault on its part and lists among its possible witnesses 'all of those witnesses mentioned in the Plaintiff's Pre Trial Memorandum and also those witnesses mentioned in the Defendant's Pre Trial Memorandum' (see pre-trial memorandum docketed as Document No. 20). Jarka's principal defense is that it is not liable under the specific contractual provisions governing the stevedoring work involved in this case. Also, the record makes clear that defendant and third-party plaintiff will rely on the evidence produced by plaintiff in the principal action in supporting its third-party claim and that plaintiff and third-party defendant are on opposite sides of the allegation of fault listed under 1 above.
Plaintiff seeks alternative relief in the Motion now before the court as follows:
A. Severance of the principal action of plaintiff against defendant from the third-party action for the purposes of trial; or
B. Entry of an order precluding the third-party defendant from participating in the trial of the principal action.
Because counsel for plaintiff has taken the position in several similar actions, as well as this one, that he is entitled to the relief requested as a matter of right in every such case, this Memorandum Opinion is being filed in this case.
A. Severance of the Actions
The United States Circuit Courts of Appeals have recognized that the purpose of permitting consolidation of actions under the Federal Rules was to encourage such consolidation where possible.
See United States v. Knauer, 7 Cir., 1945, 149 F.2d 519, 520, affirmed 1946, 328 U.S. 654, 66 S. Ct. 1304, 90 L. Ed. 1500, rehearing denied 1946, 329 U.S. 818, 67 S. Ct. 25, 91 L. Ed. 697, petition denied 1947, 332 U.S. 834, 68 S. Ct. 210, 92 L. Ed. 407. Cf. Howey v. Yellow Cab Co., 3 Cir., 1950, 181 F.2d 967, 973, affirmed sub. nom. United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S. Ct. 399, 95 L. Ed. 523; Walker v. Loop Fish & Oyster Co., 5 Cir., 1954, 211 F.2d 777, 780-781.
The Supreme Court of the United States has indicated that any criticism of the joint trial of multiple claims procedure under the Federal Rules should be directed to the revisors of the Rules or to Congress.
See United States v. Yellow Cab Co., 1951, 340 U.S. 543, 556, 71 S. Ct. 399, 95 L. Ed. 523, where the court said:
'The availability of third-party procedure is intended to facilitate, not to preclude, the trial of multiple claims which otherwise would be triable only in separate proceedings. The possibility of such procedural difficulties is not sufficient ground for so limiting the scope of the Act as to preclude its application to all cases of contribution or even to all cases of contribution arising under third-party practice. If the Act develops unanticipated complications, Congress can then meet them to such extent as it may desire to fit the demonstrated needs.'
This court has stated that where, as in this case, the same witnesses are involved in two claims, a motion for their severance for purposes of trial will be denied. See Commercial Banking Corp. v. Indemnity Ins. Co., D.C.E.D.Pa.1940, 1 F.R.D. 380, 382, where Judge Bard said:
'In this regard, the testimony to be adduced at the trial most likely will be given by the same witnesses. In sum, both convenience and economy would appear to be ...