Illinois Central Railroad Company v. Harris

Decision Date09 January 1905
Citation38 So. 225,85 Miss. 15
PartiesILLINOIS CENTRAL RAILROAD COMPANY v. THOMAS HARRIS, AND THOMAS HARRIS v. GULF & SHIP ISLAND RAILROAD CO
CourtMississippi Supreme Court

November 1904

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge

Thomas Harris, appellee as against the Illinois Central Railroad Company, and appellant as against the Gulf & Ship Island Railroad Company, was the plaintiff, and both of said railroad companies were defendants in the court below. From a judgment in plaintiff's favor against the Illinois Central Railroad Company that defendant appealed to the supreme court. Harris also appealed from a judgment in favor of the Gulf & Ship Island Railroad Company. Both appeals were heard and decided together.

On the return-day of the summons the Illinois Central Railroad Company made application to remove the case into the United States circuit court in and for the southern district of Mississippi at Jackson, on the ground that said company is an Illinois corporation, and the controversy between it and plaintiff was separable from the controversy between the plaintiff and the Gulf & Ship Island Railroad Company, which application was overruled by the court below. The Illinois Central Railroad Company and the Gulf & Ship Island Railroad Company filed separate pleas. A trial was entered upon, and at the conclusion of the testimony the court gave a peremptory instruction in favor of the Gulf & Ship Island Railroad Company, to which plaintiff excepted. The case as between plaintiff and the other defendant was submitted to the jury, and a verdict was rendered in plaintiff's favor against the Illinois Central Railroad Company for $ 750.

The plaintiff prosecuted an appeal from the judgment discharging the Gulf & Ship Island Railroad Company from the suit.

Affirmed.

Mayes &amp Longstreet, and J. M. Dickinson, for appellant, Illinois Central Railroad Company.

Under the condition of the plaintiff's case, as made in his declaration, there was clearly a separable controversy, and the case was removable to the Federal court on the application of the Illinois Central Railroad Company under the act of congress in such case provided.

It is true that the supreme court of the United States has decided in the Dickson case, 179 U.S. 131, that where the plaintiff brings a joint suit against a corporation and its employes for an injury caused by the negligence or misfeasance of the corporation's employes, there is no separable controversy; but this case does not fall within that category. Here two independent and disconnected corporations are sued in the same action, and the liability charged against one is the negligence of one person alleged to be its yardmaster, and the liability charged against the second is the negligence of a different person alleged to be its conductor.

With the Gulf & Ship Island Railroad, therefore, the case necessarily led to an issue on the conductor's negligence. With the Illinois Central, on the other hand, the trial necessarily led to an issue on the yardmaster's negligence.

The controversy, therefore, was not only separable, but of its very nature could be nothing else. To say that the controversy was not separable is absurd, because the ultimate issue of this case was a separation of it; and the court on the trial, in advance of the argument to the jury, gave a peremptory instruction in behalf of the Gulf & Ship Island Company as to the negligence charged against its conductor and sent the Illinois Central to trial before the jury as to the negligence charged against its yardmaster.

Persons are not jointly liable for tort merely because they have some connection with it, even if it be such as to give a cause of action against them. There must be some cooperation in fact. Schafer v. Union Brick Co., 128 F. 97, 101, and authorities cited; McIntyre v. Southern Ry. Co., 131 F. 985.

But in this case it was impossible that there could be a common cause of action against both of these defendants, because on the face of the declaration it was necessarily true that the primary cause of the plaintiff's injury was either the negligence of the conductor employed by the Gulf & Ship Island Company or else the negligence of the yardmaster employed by the Illinois Central Company.

Now 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. Railroad Co. v. Wangelin, 132 U.S. 599; Schafer v. Union Brick Co., supra.

And this declaration presented a case in which, if the injury by any negligence be shown, the inevitable result would be, as this record shows it was in fact, a controversy between the two defendants as to which was responsible. Stanbrough v. Cook, 3 L. R. A., 400.

We now submit our second point, which is that if we are mistaken in the foregoing position, and the state court rightfully retained jurisdiction for the reason that the action was joint, and not separable, then when the plaintiff was cast in his suit against the Gulf & Ship Island Company by the court's peremptory instruction, the co-defendant, the Illinois Central Railroad Company, was also entitled to a judgment; and the court should have sustained the motion of the Illinois Central for a peremptory instruction; or else it should have sustained the motion of the Illinois Central for a judgment non obstante.

The predicate had been properly laid. First, there had been an application for removal on the ground of separable controversy, which application was overruled; hence, secondly, on the failure of the plaintiff to maintain its joint action against the Gulf & Ship Island, the Illinois Central immediately moved for a peremptory instruction on that ground, as set forth in the record.

It certainly cannot be contended with any logic or justice that the plaintiff can so frame his declaration as, by the form of it, to deprive a defendant, otherwise entitled to removal, of his right to remove to the Federal court, and then, having failed to recover against the co-defendant so wrongfully joined, to persevere in his suit to the end and recover a separate judgment against the one whose right of removal had been so evaded. That is to nullify the act of congress by an artifice; and whatever might have been the common-law rule in regard to several recoveries against either one or the other of joint defendants, when the conditions are such that the plaintiff, by his action, has cut out a party from a substantial right to which he is entitled (as the right of a removal to the Federal court), he must submit to be defeated unless he maintains his joint action as a joint action, and shows that he is entitled to a joint recovery. Weist v. Philadelphia, 58 L. R. A., 666.

Our third point is one which goes to the merits of the case, and it is as follows: The declaration alleged, as shown before, that, by an agreement between the two railroad companies, the Gulf & Ship Island Railroad Company was using the tracks in the yard of the Illinois Central Railroad Company; and it alleges as the gravamen of the cause against the Illinois Central that the plaintiff was injured by the negligence of the Illinois Central Company's yardmaster. The fact is, we contend, as shown by the proof in the case, that, pro hac vice, the yardmaster, under the agreement between the two companies alluded to in the declaration, must be taken to have been yardmaster of the Gulf & Ship Island Company. As to the plaintiff, under the facts of the case, who was a Gulf & Ship Island employe, the Gulf & Ship Island Company was still liable, whether he was injured by the negligence of the conductor or the yardmaster, and the Gulf & Ship Island Company alone.

Granting that the yardmaster was in fault, under the agreement alleged in the declaration and produced in court, the yardmaster in his supervision and direction of Gulf & Ship Island trains and employes was not the yardmaster of the Illinois Central Company, but was the yardmaster of the Gulf & Ship Island Company. In brief, if it be true that he was negligent in the management of this particular train, being the Gulf & Ship Island train, such train being where it was under and by virtue of the agreement which was called for by the plaintiff himself, the yardmaster was acting as a Gulf & Ship Island Company servant; and the court erred in its construction of the contract and the relations between the parties, and in allowing judgment to go against the Illinois Central instead of sending the case to the jury to be heard as against the Gulf & Ship Island Company.

Brame & Brame, for Thomas Harris, appellee in the appeal of the Illinois Central Railroad Company, and appellant as against the Gulf & Ship Island Railroad Company.

On the appeal by the Illinois Central Railroad Company only two points are involved: (1) The action of the court in refusing the application to remove the cause to the Federal court. (2) The Illinois Central Railroad Company's claim that it is not liable.

The case was not removable to the Federal court. There was no separable controversy. The very case cited by opposite counsel, Railroad Co. v. Dixon, 179 U.S. 131 (21 S.Ct. 67; 45 L. ed., 121), holds the contrary. See also Winston's Administrator v. I. C. R. R. Co. (Ky.), 65 S.W. 13 (55 L. R. A., 603) ; Powers v. Railroad Co., 169 U.S. 92 (18 S.Ct. 264; 42 L. ed., 673) ; Howe v. Railroad Co. (Wash.), 70 P. 1100 (60 L. R. A., 949). This covers our case entirely.

If plaintiff has a cause of action against several defendants which is joint, or joint and several, and it is declared on jointly by plaintiff, defendants cannot, by tendering separate issues in their...

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