38 So. 225 (Miss. 1905), Illinois Central Railroad Company v. Harris

Citation:38 So. 225, 85 Miss. 15
Opinion Judge:CALHOON, J.
Party Name:ILLINOIS CENTRAL RAILROAD COMPANY v. THOMAS HARRIS, AND THOMAS HARRIS v. GULF & SHIP ISLAND RAILROAD CO
Attorney:Mayes & Longstreet, and J. M. Dickinson, for appellant, Illinois Central Railroad 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. McWillie & Thompson, E. J. Bowers, and Ja...
Case Date:January 09, 1905
Court:Supreme Court of Mississippi
 
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Page 225

38 So. 225 (Miss. 1905)

85 Miss. 15

ILLINOIS CENTRAL RAILROAD COMPANY

v.

THOMAS HARRIS, AND THOMAS HARRIS

v.

GULF & SHIP ISLAND RAILROAD CO

Supreme Court of Mississippi

January 9, 1905

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 & 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...

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