Charman v. Lake Erie & W.R. Co.

• Citation: 105 F. 449
• Decision Date: 22 December 1900
• Docket Number: 9,893.
• Parties: CHARMAN v. LAKE ERIE & W.R. CO. et al.
• Court: United States Circuit Court, District of Indiana

105 F. 449

CHARMAN v. LAKE ERIE & W.R. CO. et al.

No. 9,893.

United States Circuit Court, D. Indiana.

December 22, 1900

This is an action by the plaintiff, as administrator, against the defendants to recover damages for the death of Frank Coffman by the wrongful acts and omissions of the defendants. The action was begun in the circuit court of Delaware county Ind., and removed into this court. It is alleged that on November 29, 1899, Frank Coffman died intestate, and that letters of administration upon decedent's estate were duly issued to the plaintiff, who has duly qualified and entered upon the duties of his office; that on and long prior to November 29, 1899, the defendant the Lake Erie & Western Railroad Company owned and operated, and now owns and operates, a line of railroad through the county of Delaware Ind., which passes through the city of Muncie, in said county, at which place the defendant railroad company has had during said time regularly established switches and switch yards for handling cars and making up trains, and that during all of said time the defendant railroad company kept as its duly-appointed yard master the defendant Oliver, with full authority and control over said switch yard and the employes in said switch yard; that during said time the defendant company was, and still is, a common carrier for hire of freight and passengers, employing a large number of persons for the purpose of operating its railroad and switch yards that on October 5, 1899, the defendants employed the decedent and put him to work as a brakeman in said switch yard, and that on November 29, 1899, the decedent, while in the performance of his duty as such brakeman, was requested ordered, and commanded by defendant Oliver, as such yard master in charge of said switch yard, to couple together by means of chains two damaged cars which were then standing on one of the switches in said switch yard with a number of other cars; that the damages cars were without drawbars and bumpers, and that because of said defects the ends of said cars would come together, leaving but a few inches between their flat-end surfaces; that while in the exercise of due care, and without any fault or negligence on said decedent's part, and while chaining together said damaged cars, and acting under direct command of said defendant yard master of said defendant company, said yard master, without notice or warning to decedent, carelessly, negligently, and recklessly permitted an engine to be operated and propelled in and upon said switch, which set said cars in motion, whereby said cars, without decedent's fault or negligence, were propelled upon and against the decedent with great force and violence, and said decedent was then and there, without fault, caught between said damaged cars, and his head and skull were crushed, from the effects of which he instantly died; that the defendant Oliver kept no outlook and exercised no care whatever whereby he could have known that said cars would be propelled against the decedent; that said yard master used no signals to prevent said cars from being propelled against the decedent as aforesaid, and gave no warning to decedent that he was in danger of injury from said moving cars; that decedent was not aware of his peril, and had no notice of the movement of said cars; that all of said wrongs, grievances, and injuries to the person of the decedent occurred solely through the negligence, carelessness, and recklessness of said defendants, as hereinbefore stated and alleged; that decedent was a strong and vigorous young man, 27 years of age; and that he left a wife and child.

The defendant the Lake Erie & Western Railroad Company filed a petition and bond for the removal of the cause from the state court into this court. The state court ordered the removal. The petition alleges 'that the Lake Erie & Western Railroad Company is, and at the time the action was commenced was, a corporation organized and existing under and by virtue of the laws of the state of Illinois, and a citizen of that state, and that the plaintiff was at the time of the commencement of the suit, and ever since has been, and still is, a resident and citizen of the state of Indiana; that the matter in dispute between the plaintiff and the petitioner in said action exceeds, exclusive of interest and costs, the sum of two thousand dollars; that there exists in said action a controversy between the plaintiff and the petitioner, which is wholly between them, and is entirely distinct and separate from the controversy between the plaintiff and the defendant Hortense L. Oliver, and the controversy between the plaintiff and the petitioner may be tried and fully determined apart from and independently of the controversy between the said plaintiff and the said Oliver; that, as shown by said complaint filed herein, the plaintiff seeks to recover a judgment against the defendant Oliver solely by reason of his personal acts of negligence, resulting in the injury of the plaintiff's intestate, and in said complaint he seeks to recover a judgment against this petitioner upon the ground that the petitioner is claimed to be liable for the negligent acts of said Oliver as its agent, and by reason of the alleged fact that the said cars sought to be coupled were out of order, and by reason of the statute of the state of Indiana known as the 'Employers Liability Act,' in force March 4, 1893, and known as 'Section 7083 of Burns' Revised Statutes of 1894.' But the petitioner further shows that said complaint does not state any joint liability against it and said Oliver, but whatever liability is shown as to each is several, and not joint. But this petitioner avers that the plaintiff, for the purpose of preventing the removal of this cause into the United States circuit court for trial, has joined the said Oliver, who is a resident and citizen of Indiana, as a co-defendant with the petitioner.'

The statute referred to in the petition reads as follows: 'That every railroad * * * operating in this state shall be liable for damages for personal injuries suffered by any employee while in its service, the employee so injured being in the exercise of due care and diligence, * * * where such injury was caused by the negligence of any person in the service of such corporation was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round house, locomotive engine, or train upon a railway.'

The plaintiff moves to remand this action to the state court on the ground that the cause of action set out in the complaint is an entirety, and not separable.

White & Young and Mann & Lesh, for plaintiff.

John B. Cockrum and Miller, Elam & Fesler, for defendant.

BAKER District Judge (after stating the facts).

The statement that the defendant Oliver was joined as a co-defendant with the petitioner for the purpose of preventing a removal is of no importance. If the plaintiff had the right to bring a joint action against the company and its servant for the negligent killing of the plaintiff's intestate, his motive or purpose in so doing is immaterial. In respect to the removal of actions for tort on the ground of a separable controversy, certain matters are too firmly settled to be open to dispute. In Railroad Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed. 473, the complaint charged two corporations with having jointly trespassed on the plaintiff's land; and it was set out in the petition for removal that one of the corporations was not in existence at the time of the alleged trespass, but that was held to be a question on the merits. It was said--

'That in any case the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition or in the affidavit of the petitioner, unless the petition both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court.'

In the case of Torrence v. Shedd, 144 U.S. 527, 12 Sup.Ct. 726, 36 L.Ed. 528, it is said:

'As this court has repeatedly affirmed, not only in cases of joint contracts, but in actions for torts which might have been brought against all or against any one of the defendants, 'separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings."

The complaint in this case charges--

'That all of said wrongs, grievances, and injuries to the person of said decedent occurred solely through the negligence, carelessness, and recklessness of said defendants, as hereinbefore stated and alleged.'

If 'a defendant has no right to say that an action shall be several which a plaintiff elects to make joint,' it would seem that this rule would apply here, because the plaintiff has elected to sue the defendants jointly for wrongs which he alleges the defendants have jointly committed.

It is however, insisted that the complaint does not show that the company was present, participating in the alleged wrongs, nor that such wrongs were...