right of recovery.


9
The action was tried to the court without a jury, a jury being waived, and resulted in findings and judgment in favor of the plaintiff in that action and against the St. Louis-San Francisco Railway Company in the sum of $4,500.00. Upon the entry of the judgment the railway company paid the judgment in full and the plaintiff personally satisfied the same by endorsement. The appellee herein was not joined with the railway company in the action in which plaintiff recovered judgment.


10
Some four months subsequent to the recovery of judgment against the St. Louis-San Francisco Railway Company, appellant brought this action in the United States District Court for the Western District of the State of Arkansas against appellee, the owner of the truck which appellant wasto warn this plaintiff of the hidden defect in the brakes and that the negligence of the defendant in failing, neglecting and omitting to warn the plaintiff of the defective condition of the brakes was the sole, direct and proximate cause of the accidental injuries sustained by the plaintiff."


13
In due course defendant interposed a motion to dismiss the action on the following grounds:


14
"I. That the complaint fails to state a claim upon which relief can be granted; that as shown by the complaint filed herein, this suit is based upon alleged damages for personal injuries received by the plaintiff in an accident that happened on June 22, 1958, near Tulsa, Oklahoma, when the truck belonging to the defendant, Charles R. Jett, and being driven by the plaintiff, Albert