Broadway Ins. Co. v. Chicago G.W. Ry. Co.

• Decision Date: 07 May 1900
• Parties: BROADWAY INS. CO. et al. v. CHICAGO G.W. RY. CO. et al.
• Court: U.S. District Court — Western District of Missouri

101 F. 507

BROADWAY INS. CO. et al. v. CHICAGO G.W. RY. CO. et al.

United States Circuit Court, W.D. Missouri, Western Division.

May 7, 1900

Fyke Yates, Fyke & Snider, for complainants.

Frank Hagerman and W. E. Hall, for defendants.

PHILIPS District Judge.

This cause has been submitted on demurrer to the bill. But an examination of the bill raises the question of jurisdiction in the mind of the court. The complainants are all nonresident insurance companies. The defendant railroad company is also a nonresident citizen. The defendant W. D Bennett Lumber Company (which for convenience will be designated as the 'Lumber Company') is a Missouri corporation, as also the other defendant, the Farmers' Mutual Insurance Company. The controversy, in brief, grows out of the following state of facts, as disclosed by the bill of complaint: The Lumber Company took out policies of insurance in all of said insurance companies, in varying amounts, on its lumber and certain houses situated in the state of Missouri. The bill alleges that said lumber and houses, through the negligence of the defendant railroad company, were totally destroyed by fire communicated by its locomotive engine. The total loss amounted to about $16,000. The complaining companies paid, on account of their policies in settlement, sums aggregating $14,000. The defendant Farmers' Mutual Insurance Company, whose policy was for $1,000, has paid nothing. The object of this suit is to recover, by was of subrogation, from the railroad company the sum so paid by the insurers, and for an adjustment of the equities of the parties. The bill alleges that the Lumber Company refuses either to sue the railroad company to recover from it any portion of the loss, or to join with the complainants in this action, wherefore it is made a party defendant, as permitted under the practice act of the state; and, as the Farmers' Mutual Insurance Company, under the allegations of the bill, is a party in interest, necessary to a complete determination of the controversy, it is also made a defendant. This suit was brought in the circuit court of Jackson county, Mo., from which it was removed into this court on the petition of the defendant railroad company. The petition for removal recited the facts aforesaid respecting the citizenship of the parties, and predicated the right of removal on the grounds (1) that the cause of action, as among the defendants, is severable; (2) that the other defendants are joined merely for the fraudulent purpose of preventing the railroad company from removing the case into the United States court; and (3) that the complainants would insist, at the trial of the case, that if the fire complained of was communicated directly or indirectly by the locomotive engine of the petitioner, then there was absolute liability on the part of the railroad company for the loss, by reason of section 2615, Rev. St. Mo. 1889, nothwithstanding the proof might show the highest degree of care on the part of the railroad, and therefore the defendant petitioner would insist that such statute is in contravention of the fourteenth amendment to the federal constitution, 'wherefore this case is of a civil nature, arising under the constitution of the United States, all of which appears by petitioner's answer herein.'

We will eliminate from this discussion any consideration of the allegation as to joining the other defendants with the railroad company in order to prevent it from removing the controversy into this court, as this is a mere brutum fulmen unsupported by any proof, and contradicted by the necessary allegations of the bill. All of the defendants not being nonresidents of the state where the suit was brought, to entitle the nonresident defendant to remove the case, the suit must present 'a controversy which is wholly between citizens of different states, and which can be wholly determined as between them. ' The petition for removal was framed to meet this provision of the statute. 'The rule is now well established that this clause in the section refers only to suits where there exists a separate and distinct cause of action on which a separate and distinct suit might have been brought and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. To day the least, the case must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more states on one side and citizens of other states on the other, which can be fully determined without the presence of the other parties to the suit as it...