Dougherty v. Yazoo & M.V.R. Co.

• Decision Date: 31 March 1903
• Docket Number: 1,149.
• Parties: DOUGHERTY v. YAZOO & M.V.R. CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

122 F. 205

DOUGHERTY v. YAZOO & M.V.R. CO. et al.

No. 1,149.

United States Court of Appeals, Fifth Circuit.

March 31, 1903

L. W Magruder and J. C. Bryson, for plaintiff in error.

Edward Mayes, J. B. Harris, and Thomas A. McWillie, for defendants in error.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

This action was brought by John C. Dougherty, the plaintiff in error, in the state circuit court of Jefferson county, Miss against the Yazoo & Mississippi Valley Railroad Company and the Pullman Palace Car Company, jointly, for personal injuries sustained by him by being thrown from a rapidly moving train of the defendant railroad company, through the alleged joint negligence of the defendants and their servants. In due time the Pullman Company presented its petition to the state court for removal of the suit to the United States Circuit Court, alleging that 'this is a suit wherein the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars and in which there is a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid; that this is a suit in which there is a controversy which is wholly between citizens of different states, and which can be fully determined as between them, and petitioner is one of the defendants actually interested in said controversy. ' Thereupon the suit was removed to the Circuit Court. The plaintiff moved to remand on the grounds, first, that the suit was not removable to the Circuit Court; second, that this suit, embracing the same cause of action, was first instituted by the plaintiff against the defendants in the Circuit Court of the United States for the Eastern District of Louisiana, and was dismissed by that court for the want of jurisdiction, based upon citizenship, on the motion of the defendant Pullman Palace Car Company, on the . . . day of . . ., 1899. This motion, having been duly heard, was refused by the Circuit Court. The learned judge who sat in the Circuit Court, in passing on this motion, announced the following views:

'Whenever it appears on the petition and from all the pleadings that the controversy is wholly between citizens of different states, as it does here, one of several defendants, being actually interested therein, a nonresident, and a 'citizen' of another state, may remove it to a federal court, irrespective of whether the suit involved separate controversies, or only one. See Hunter v. Conrad et al. (C.C.) 85 F. 803. In Garner v. Second National Bank of Providence et al. (C.C.) 66 F. 309, it is held that, 'where an action is brought in a state court by a citizen of one state, any one of such defendants, without the others, may remove the cause to a federal court, though it contains but a single controversy.' In Boston Safe Deposit & Trust Company v. Mackay et al. (C.C.) 70 F. 801, it is held that where a citizen of one state commences an action in the state court of another state against three persons, two of whom are citizens of the state where the suit is brought, and one of whom is a citizen of a third state, such citizen of the third state may remove the case to the federal court. The Pullman Palace Car Company, a citizen of Illinois, sued by a citizen of Tennessee in a United States court of Louisiana, had a right to plead to the jurisdiction of that court, and move to dismiss the suit for want of jurisdiction, and demand that it be sued in a federal court in its own district of Illinois. But the plaintiff sues in a state court, and unquestionably the defendant, on showing that it is a citizen of the state of Illinois, and the plaintiff a citizen of the state of Tennessee, and its codefendant a citizen of Mississippi, and the amount in controversy exceeding, exclusive of interest and costs, the sum of two thousand dollars, and filing a bond as required by law, is entitled to be heard in the Circuit Court of the United States for the Southern District of Mississippi, notwithstanding its motion to dismiss in the United States Circuit Court for the Eastern District of Louisiana. The motion to remand must be denied.'

The Circuit Court having thus retained the case, such proceedings were thereinafter had as resulted in a verdict and judgment for the defendants, to review and reverse which the plaintiff sued out this writ of error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge (after stating the facts as above).

The first error assigned is the overruling and denying plaintiff's motion to remand this suit. Counsel for the Pullman Company urge that the jurisdiction of the Circuit Court in this case can be safely rested on the diversity of citizenship alone, and that the petition for removal need not have contained the additional averment that there was a separable controversy. In reference, however, to the averment of a separable controversy in the suit, they urge that the sufficiency of the roadbed and the proper handling of the train are matters of defense with which the Pullman Company has no concern, and, moreover, that, not being a common carrier, it is under no duty to exercise the same high degree of care required of the railroad company; that the complaint involves quite different lines of defense on the part of the two defendants.

As to these contentions:

Counsel for the plaintiff in error relies with well-placed confidence on the cases of Chicago, Rock Island & Pacific Railway Company v. Martin, 178 U.S. 245, 20 Sup.Ct. 854, 44 L.Ed. 1055, and Chesapeake & Ohio Railway Company v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121. In the first of these cases it appears that Lissa Martin, ad administratrix of William Martin, deceased, brought her action for damages against the Chicago, Rock Island & Pacific Railway Company, and against Clark and others, receivers of the Union Pacific Railway Company, in the state court in Kansas. The receivers presented their petition and bond, praying for removal of the cause to the United States Circuit Court on the ground that the case arose under the Constitution, and laws of the United States. Their application was overruled. The case was tried. Judgment was rendered in favor of the plaintiff against all of the defendants. This judgment was affirmed on writ of error by the Supreme Court of Kansas. 59 Kan. 437, 53 P. 461. The refusal of the state court to remove the cause to the Circuit Court on the application of the receivers was relied on as error throughout the proceedings; and the Supreme Court of Kansas held that the application for removal was properly denied, because all of the defendants were charged with jointly causing the death of plaintiff's intestate, and all did not join in the petition for removal. The case was brought by writ of error to the United States Supreme Court. In delivering the opinion of that court, the Chief Justice, after reciting the language of the act of August 13, 1888, 25 Stat. 433, c. 866 (U.S. Comp. St. 1901, p. 509), bearing upon the subject, says:

'It thus appears on the face of the statute that if a suit arises under the Constitution or laws of the United States, or if it is a suit between citizens of different states, the defendant, if there be but one, may remove, or the defendants, if there be more than one; but where the suit is between citizens of different states, and there is a separable controversy, then either one or more of the defendants may remove.

'Under the first clause of section 2 of the act of 1875 (18 Stat. 470, c. 137), which applied to 'either party,' but in its re-enactment in the second clause of section 2 of the act of 1887 (24 Stat. 552, c. 3731), above quoted, is confined to the defendant or defendants, it was well settled that a removal could not be effected unless all the parties on the same side of the controversy united in the petition; and so as to the second clause of the second section of the act of 1875, which corresponds with the third clause of the second section of the act of 1887, it was held that that clause only applied where there were two or more controversies in the same suit, one of which was wholly between citizens of different states. Hanrick v. Hanrick, 153 U.S. 192 (14 Sup.Ct. 835, 38 L.Ed. 685), and cases cited; Torrence v. Shedd, 144 U.S. 527 (12 Sup.Ct. 726, 36 L.Ed. 528), and cases cited. In the latter case Justice Gray 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."

In the concluding paragraph of the opinion, the Chief Justice says:

'Whatever the rights of the receivers to remove the cause if they had been sued alone, the controversy was not a separable controversy, within the intent and meaning of the act. This being so, the case came solely within the first clause of the section, and we are of the opinion that it was not intended by Congress that under such circumstances there should be any difference between the rule applied under the

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