Breymann v. PENNSYLVANIA, O. & DR CO., No. 5315.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMOORMAN and HICKENLOOPER, Circuit , and TAYLOR
Citation38 F.2d 209
PartiesBREYMANN et al. v. PENNSYLVANIA, O. & D. R. CO. et al.
Decision Date14 February 1930
Docket NumberNo. 5315.

38 F.2d 209 (1930)

BREYMANN et al.
v.
PENNSYLVANIA, O. & D. R. CO. et al.

No. 5315.

Circuit Court of Appeals, Sixth Circuit.

February 14, 1930.


38 F.2d 210

Ritter & Brumback, of Toledo, Ohio, for appellants.

Fraser, Hiett, Wall & Effler, of Toledo, Ohio, for appellees.

Before MOORMAN and HICKENLOOPER, Circuit Judges, and TAYLOR, District Judge.

HICKENLOOPER, Circuit Judge.

Plaintiffs brought their action in the court of common pleas of Lucas county, Ohio, under sections 8814 and 8970 of the General Code of Ohio, claiming joint liability of defendants for the destruction of certain barges by fire communicated from the railway. The Pennsylvania Railroad Company filed a petition for removal, alleging that The Pennsylvania, Ohio & Detroit Railroad Company, an Ohio corporation, was "improperly joined as a party defendant to this cause fraudulently and solely for the purpose of preventing a removal of the cause from this court to the United States District Court." The cause was removed, and plaintiffs' motion to remand, and a demurrer by The Pennsylvania, Ohio & Detroit Railroad Company, were heard together. The demurrer was sustained and the motion to remand denied. The plaintiffs not desiring to plead further, the petition was dismissed as to said defendant, The Pennsylvania, Ohio & Detroit Railroad Company, and plaintiffs appeal both from said dismissal and from the refusal to remand the cause.

We are of the opinion that the motion to remand traversed the defendant's allegation of fraudulent joinder sufficiently to bar application of the doctrine of Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144, to the effect that, if the plaintiff does not take issue with what is stated in the petition for removal, the defendant need not produce evidence to sustain the allegation of fraudulent joinder, which will then be taken as conceded. Counsel for both parties, and the court, treated decision upon the motion to remand as dependent wholly and solely upon whether the plaintiff's petition stated a cause of action against the local defendant upon ultimate, critical analysis by the court, and without regard to the uncertain and debatable character of the question, or whether the claim of joint liability was asserted upon reasonable and colorable grounds. In limiting consideration to the meritorious question of ultimate liability, without considering the other aspects of the case just mentioned, we think the court fell into error.

In determining removability the case must be deemed to be such as the plaintiff has in good faith made it in his petition. If the record discloses such good-faith assertion of a joint cause of action then such action is not separable and there can be no removal unless the claim of joint liability is obviously frivolous, specious, and unsound. Alabama Great So. Ry. Co. v. Thompson, 200 U. S. 206, 216, 218, 26 S. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Southern Ry. Co. v. Miller, 217 U. S. 209, 30 S. Ct. 450, 54 L. Ed. 732; Chicago, B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521; Chicago & A. R. Co. v. McWhirt, 243 U. S. 422, 37 S. Ct. 392, 61 L. Ed. 826. As Mr. Justice Holmes has expressed it, the court need not "consider more than whether there was a real intention to get a joint judgment and whether there was a colorable ground for it shown as the record stood when the removal was denied." Chicago, R. I. & Pac. Ry. Co. v. Schwyhart, 227 U. S. 184, 194, 33 S. Ct. 250, 251, 57 L. Ed. 473. So considered, we think the motion to remand should have been granted and the demurrer left for the decision of the state court.

Section 8814 of the General Code of Ohio provides that notwithstanding the lease of a railroad to an operating company, the lessor "shall remain liable as if it operated the road itself, and both the lessor and lessee shall be jointly liable upon all rights of action accruing to any person for 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 the courts of this state. * * *" Section 8970 creates a liability, imposed upon every company operating a railroad, for all loss or damage...

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48 practice notes
  • Pullman Co v. Jenkins 13 8212 14, 1938, No. 210
    • United States
    • United States Supreme Court
    • January 16, 1939
    ...Co., 10 Cir., 37 F.2d 338; Gulf Refining Co. v. Morgan, 4 Cir., 61 F.2d 80, 81; see Breymann v. Pennsylvania, O. & D.R. Co., 6 Cir., 38 F.2d 209, opinion of Hutcheson, Circuit Judge, in Lake v. Texas News Co., D.C.S.D.Texas, 51 F.2d 862, 863, and City of Waco, Tex., v. United States F. & G.......
  • SAFE WORKERS'ORGANIZATION, CHAP. NO. 2 v. Ballinger, No. C-1-74-336.
    • United States
    • U.S. District Court — Southern District of Ohio
    • November 20, 1974
    ...the motion must be granted in the interest of justice to the parties. The Sixth Circuit in Breymann v. Pennsylvania O. & D. R. Co., 38 F.2d 209, 212 (C.C.A.6th 1930) ". . . the final determination of the cause may perhaps be expedited by the granting of the motion to remand. No error can be......
  • Rodriguez v. Union Oil Co. of Cal., Civ. No. 16790.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 28, 1954
    ...Missouri Pac. R. Co. v. Fitzgerald, 1896, 160 U.S. 556, 16 S. Ct. 389, 40 L.Ed. 536; Breymann v. Pennsylvania, etc., R. Co., 6 Cir., 1930, 38 F.2d 209, 212; Albi v. Street & Smith Publications, 9 Cir., 140 F.2d 310; East Coalinga Oil Fields Corp. v. Pure Oil Co., D.C.S.D.Cal.1946, 66 F.Supp......
  • Matter of Marriage of Smith, No. SA-82-CA-522.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • October 11, 1982
    ...546, 554 (D.N.J.1967), citing Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132 (1888); Breyman v. Pennsylvania, O. & D.R. Co., 38 F.2d 209 (6th Cir.1930). Despite the fact that the "right, title or authority" wording of section 1442a, taken at face value, appears to allow removal......
  • Request a trial to view additional results
48 cases
  • Pullman Co v. Jenkins 13 8212 14, 1938, No. 210
    • United States
    • United States Supreme Court
    • January 16, 1939
    ...Co., 10 Cir., 37 F.2d 338; Gulf Refining Co. v. Morgan, 4 Cir., 61 F.2d 80, 81; see Breymann v. Pennsylvania, O. & D.R. Co., 6 Cir., 38 F.2d 209, opinion of Hutcheson, Circuit Judge, in Lake v. Texas News Co., D.C.S.D.Texas, 51 F.2d 862, 863, and City of Waco, Tex., v. United States F. & G.......
  • SAFE WORKERS'ORGANIZATION, CHAP. NO. 2 v. Ballinger, No. C-1-74-336.
    • United States
    • U.S. District Court — Southern District of Ohio
    • November 20, 1974
    ...the motion must be granted in the interest of justice to the parties. The Sixth Circuit in Breymann v. Pennsylvania O. & D. R. Co., 38 F.2d 209, 212 (C.C.A.6th 1930) ". . . the final determination of the cause may perhaps be expedited by the granting of the motion to remand. No error can be......
  • Rodriguez v. Union Oil Co. of Cal., Civ. No. 16790.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 28, 1954
    ...Missouri Pac. R. Co. v. Fitzgerald, 1896, 160 U.S. 556, 16 S. Ct. 389, 40 L.Ed. 536; Breymann v. Pennsylvania, etc., R. Co., 6 Cir., 1930, 38 F.2d 209, 212; Albi v. Street & Smith Publications, 9 Cir., 140 F.2d 310; East Coalinga Oil Fields Corp. v. Pure Oil Co., D.C.S.D.Cal.1946, 66 F.Supp......
  • Matter of Marriage of Smith, No. SA-82-CA-522.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • October 11, 1982
    ...546, 554 (D.N.J.1967), citing Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132 (1888); Breyman v. Pennsylvania, O. & D.R. Co., 38 F.2d 209 (6th Cir.1930). Despite the fact that the "right, title or authority" wording of section 1442a, taken at face value, appears to allow removal......
  • Request a trial to view additional results

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