Johnson v. St. Joseph Terminal Ry. Co.
Citation | 203 Mo. 381,101 S.W. 641 |
Parties | JOHNSON v. ST. JOSEPH TERMINAL RY. CO. et al. |
Decision Date | 28 March 1907 |
Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.
Action by Viola A. Johnson against the St. Joseph Terminal Railway Company and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.
Gardiner Lathrop, Thomas R. Morrow, Samuel W. Moore, James P. Gilmore, and R. A. Brown, for appellants. Mytton, Parkinson & Crow, for respondent.
Plaintiff is the alleged widow of John C. B. Johnson, deceased. Petition was filed within the time allowed by statute, but, as originally filed, asked for but $2,000 damages. Later it was amended so as to make the ad damnum clause read $5,000, instead of $2,000. The action is therefore the statutory action, under section 2864, Rev. St. 1899 [Ann. St. 1906, p. 1637], to recover the penal sum of $5,000, due the wife for the negligent killing of her husband. Defendant St. Joseph Terminal Railroad Company is a Missouri corporation, and defendant Atchison, Topeka & Santa Fé Railway Company is a Kansas corporation. Johnson was a sectionman in the employ of the terminal company. He was run over and killed by a Santa Fé train, within the limits of the terminal company's switch yards in the city of St. Joseph. Defendant Santa Fé Company filed its application and bond for the removal of the cause to the United States Circuit Court at St. Joseph, Mo. This application was, by the trial court, overruled. It might be well to state here that plaintiff had on February 19, 1903, brought a previous suit, which had been transferred to the federal court, but this suit was dismissed by plaintiff in the federal court at the September term, 1903, and this suit brought December 14, 1903. The failure of the state court to transfer the present suit to the federal court is urged as error. The application for removal was in due form, and alleged that the cause of action, so far as the Santa Fé Company was concerned, was a separable cause of action from the one alleged against the terminal company, and that the terminal company was fraudulently joined in an attempt to deprive the Santa Fé Company of its right to transfer said cause to the federal court.
The allegations of the petition, in so far as are necessary for the opinion, are as follows: ...
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