Whelan v. New York, L.E. & W.R. Co.

• Decision Date: 24 July 1888
• Citation: 35 F. 849
• Parties: WHELAN v. NEW YORK, L.E. & W.R. CO. et al.
• Court: U.S. District Court — Northern District of Ohio

35 F. 849

WHELAN v. NEW YORK, L.E. & W.R. CO. et al.

United States Circuit Court, N.D. Ohio, Eastern Division.

July 24, 1888

A. W Jones and W. S. Anderson, for plaintiff.

S. E Williamson, Hine & Clarke, Adams & Russell, Geo. F. Avrell and C. A. Truesdale, for various defendants.

Before JACKSON and WELKER, JJ.

JACKSON J.

The material facts on which the questions presented by the pending application of plaintiff and motion of defendant depend are the following: In May, 1887, the plaintiff, a citizen of Ohio, commenced a civil action for damages in the court of common pleas of Mahoning county, state of Ohio, and against the New York, Lake Erie & Western Railroad Company, a citizen and corporation of the state of New York, and the Cleveland & Mahoning Valley Railroad Company, the New York Pennsylvania & Ohio Railroad Company, and the Youngstown Street-Railroad Company, corporations of the state of Ohio. The cause of action set up in plaintiff's petition is for injuries sustained by him while riding as a passenger on a street car of the Youngstown Street-Railroad Company, by reason of a collision of said car with a locomotive of the New York, Lake Erie & Western Railroad Company, which company, as lessee, was operating the line of railroad owned by the Cleveland & Mahoning Valley Railroad Company; said railroad having been first leased to the New York, Pennsylvania & Ohio Railroad Company, and then assigned or subleased by that company, with the consent of the lessor, to the New York, Lake Erie & Western Railroad Company, whose alleged negligence in operating its locomotive, in connection with that of the Street-Railroad Company, caused the injury complained of. The petition alleged a joint cause of action against all the defendants, under and in pursuance of an act of the legislature of Ohio, passed April 13, 1883, which provided (80 Ohio Laws, p. 117, § 3305) that 'the company to whom any railroad is leased, if a corporation of any other state, shall be subject to all restrictions, disabilities, and duties of a railroad incorporated within the state; and, notwithstanding such lease, the corporation of this state, lessor therein, shall remain liable as if it operated the road itself, and both lessor and lessee shall be jointly liable upon all rights of action accruing to any person for any negligence or default growing out of the operation and maintenance of such railroad, or in any wise connected therewith, and may be jointly sued in any of the courts of this state of proper jurisdiction, and prosecuted to final judgment therein as in other cases of joint liability, and provided that service may be had upon said companies, or either of them, by the service of process upon any officer or agent of either of said companies. ' The defendants severally demurred to the petition. These demurrers were overruled by the state court in the fall of 1887, and defendants were allowed time to answer the petition, and thereafter, in January, 1888, answers were filed by the defendants putting in issue the grounds of recovery set out in the petition. While the cause was thus at issue, and before trial, the New York, Lake Erie & Western Railroad Company, in February, 1888, filed in said state court its petition, supported by affidavits of its proper officer, asking for a removal of the case to this court on the ground of prejudice and local influence, which would prevent it from obtaining justice in said court of common pleas or in any other court of said state of Ohio to which it had a right, on account of said prejudice or local influence, to remove said cause. Bond with security was tendered along with the petition for removal, and on the 24th of February, 1888, the state court approved the bond, granted the order for the removal of the cause to this court, and directed a stay of all further proceedings in said state court. A copy of the record or proceedings in said cause was duly entered in this court by the defendant, and on February 25, 1888, said defendant presented to this court its petition setting forth the aforesaid proceedings in the state court, the steps it had taken to effect a removal of the suit, the action of the state court thereon, and praying that said suit might be removed to this court pursuant to the act of congress approved March 3, 1887, alleging as the ground for such removal 'that from prejudice and local influence said railroad company (defendant) will not be able to obtain justice in said court of common pleas, or in any other state court to which it has, under the laws of the state of Ohio, a right, on account of such prejudice or local influence, to remove said cause,' etc. This petition was verified by the proper officer of the company, who, in his affidavit accompanying the petition, states the existence of such prejudice and local influence, as alleged by petitioner, and that by reason thereof said railroad company cannot obtain justice in said court of common pleas or in any other state court to which it has, under the laws of Ohio, a right, on account of such prejudice or local influence, to remove said suit. On the presentation of said petition and affidavit, this court, without notice to the plaintiff, directed an entry to be made to the effect that the petitioner was entitled to a removal of this cause.

In the petition and affidavit presented to the state court the removal was asked on the grounds that 'petitioner had reason to believe, and does believe, that from prejudice and from local influence it will not be able to obtain justice in said court of common pleas, or in any other court of said state of Ohio to which it has a right, on account of said prejudice or local influence, to remove said cause; and your petitioner desires to remove said suit into the circuit court of the United States for the Northern district of Ohio, Eastern division, in pursuance of the act of congress in that behalf, provided, to-wit, the act approved March 3, 1887, entitled,' etc. While reference is thus made to the act of March 3, 1887, the removal proceedings in the state court, as clearly appears from the petition and affidavit filed therein, were taken under and in conformity with the provisions of subsection 3, Sec. 639, Rev. St., embodying the act of March 2, 1867, which requires the party seeking removal to make affidavit to the effect that he 'has reason to believe, and does believe, that from prejudice or local influence he will not be able to obtain justice in such state court. ' In the petition and affidavit subsequently presented to this court, and on which its action was invoked, there is no statement as to what petitioner or its affiant had 'reason to believe and does believe' in respect to the existence of prejudice or local influence such as would prevent the defendant from obtaining justice in the state courts; but it is directly stated and alleged, in the very terms of the act of March 3, 1887, 'that from prejudice and local influence it (said defendant) will not be able to obtain justice in said court of common pleas, or in any other state court of Ohio to which the said defendant has, under the laws of said state, the right, on account of such prejudice or local influence, to remove said cause. ' The plaintiff, on April 14, 1888, filed in this court a written application he denies that there is any controversy between himself and said New York, Lake Erie & Western Railroad Company in said action, but, on the contrary, avers that the entire controversy in said suit is between himself on the one side, a citizen of Ohio, and on the other side the New York, Lake Erie & Western Railroad Company, the Cleveland & Mahoning Valley Railway Company, the New York, Pennsylvania & Ohio Railroad Company, and the Youngstown Street-Railroad Company, the last three defendants being corporations and citizens of the state of Ohio. He denies that on account of prejudice or local influence, or any other cause, defendants will be enabled to obtain justice in the court of common pleas of Mahoning county, Ohio, or in any other court of said state to which said action could be removed; and further denies that any prejudice or local influence exists against defendants, or either of them, in Mahoning county, or in any of the counties to which said action might be removed under the laws of Ohio, which will tend in any manner to prevent defendants, and each of them, from obtaining justice in said courts. He further denies that said New York, Lake Erie & Western Railway Company, or any one for it, has filed any affidavits, as required by statute; on which denials, as issue joined, plaintiff demands a hearing, and then asks that the suit be remanded for want of jurisdiction in this court over either the cause or the parties thereto. The defendant moves to strike said application from the files, because the same is not authorized by law; because not in conformity with the practice of the court; and because the matters therein set up are irrelevant.

Three of the defendants in this action being Ohio corporations, and thus citizens of the same state with the plaintiff, the other defendant, the New York, Lake Erie & Western Railroad Company, although a citizen of a state other than that of the plaintiff, could not, under the act of March 2, 1867, or the third subdivision of section 639, Rev. St., remove the suit to this court. This is well settled by numerous decisions of the supreme court holding that the removal of a cause from a state court on the ground of local prejudice can be had only where all the parties to the suit on one side are citizens of different states from those on the other; that, if on each side there be more than one person, then all the persons on one side must be citizens of the state in which the suit is...