187 F.2d 397 (9th Cir. 1951), 12636, Smith v. Southern Pac. Co.

Docket Nº:12636, 12637.
Citation:187 F.2d 397
Party Name:SMITH v. SOUTHERN PAC. CO. et al. (two cases).
Case Date:February 21, 1951
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 397

187 F.2d 397 (9th Cir. 1951)

SMITH

v.

SOUTHERN PAC. CO. et al.

(two cases).

Nos. 12636, 12637.

United States Court of Appeals, Ninth Circuit.

February 21, 1951

Rehearing Denied April 6, 1951.

Page 398

Brazier C. Small and Bruce Spaulding, Salem, Or., for appellants.

Page 399

Koerner, Young, McColloch & Dezendorf and John Gordon Gearin, Portland, Or., for appellees.

Before BIGGS, HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

The above entitled cases arise out of a railroad crossing accident near Salem, Oregon between a freight train of the Southern Pacific Company and an automobile in which the plaintiff and plaintiff's decedent were passengers. Plaintiff, herein referred to as appellant, brought one suit as the administratrix of the estate of her deceased husband in one case and as a suitor in her own behalf for personal injuries in the other. Both cases involve the same facts and basic issues. They were consolidated for trial and are consolidated on this appeal. The cases were tried to the court without a jury and resulted in judgment for the defendants. All comments in this opinion refer to both cases.

The only question presented on this appeal is whether the cases were improvidently removed from the state court. The action was commenced in the state court naming as defendants the Southern Pacific Company, a Delaware Corporation and one T. C. Gerousbeck. That portion of the complaint with which we are now concerned will be set out fully later in this opinion. At this point it is sufficient to state that the individual defendant is not identified in the complaint other than his name appears on the heading and the use of the plural word 'defendants' and the plural pronoun 'they' in the body of the complaint.

Southern Pacific Company filed a petition for removal of the action to the United States District Court. This petition, after setting up the diversity of citizenship between plaintiff and the corporate defendant and the amount in controversy, alleged two grounds of improper joinder of the individual defendant: (1) that the joinder as a party defendant of T. C. Gerousbeck is without reasonable basis, is made in bad faith for the fraudulent purpose of defeating removal and for the further ground (2) that the complaint does not state a cause of action against said T. C. Gerousbeck. This petition for removal did not set forth, by affidavit or otherwise, any facts showing or tending to show that the joinder of the individual defendant was without reasonable basis or made in bad faith.

A motion to remand was made by appellants accompanied by an affidavit the substance of which is that T. C. Gerousbeck is a citizen of Oregon and was properly joined as a party defendant. It did not deny or take issue with the railroad's contention that the complaint failed to state a cause of action nor did it deny the charge of fraudulent joinder.

The trial judge denied the motion to remand. His reason for so doing is not stated in the order which appears in the record. 1 It appears, however, in his findings of fact, conclusions of law and his opinion after the trial of the case on the merits. His reasons are best expressed in his opinion, as follows: 'There has been an attempt here to join the conductor of the train, and I find now, since all the proof is in, that the conductor had no responsibility toward the plaintiff in the case and the plaintiff's decedent in the other case; and I further find that the original complaint in this case did not state a cause of action against this defendant. The terms are general and it does not state any specific charge of negligence as against the individual defendant. Upon that ground I find in the first place, that there was no cause of action stated against the individual defendant and, in the second place, since I have heard all the evidence, that no charges of negligence were proven against him. I will make findings to that effect and also include in the judgment the statement that the original complaint did not state a cause of action against the individual defendant.'

Appellants have advanced certain points which were conceded by appellees and which we agree are correct propositions of law. The points on which the parties are in

Page 400

agreement are: (1) the right of the railroad defendant to remove the cause to a federal court is to be determined by the well-pleaded facts in the complaint at the time the petition for removal is filed; 2 (2) the legal sufficiency of the complaint is determined by the law of the State of Oregon in effect at the time the court is called upon to make this determination; 3 (3) that if joint liability appears from the ultimate facts pleaded in the complaint, appellant's motive in joining the individual defendant is not fraudulent even if the sole reason for joinder is the prevent removal. 4

Appellees state that, although it is true that doubt as to the propriety of the removal should be resolved in favor of retention of a cause...

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