Breymann v. PENNSYLVANIA, O. & DR CO.

• Decision Date: 14 February 1930
• Docket Number: No. 5315.,5315.
• Citation: 38 F.2d 209
• Parties: BREYMANN et al. v. PENNSYLVANIA, O. & D. R. CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

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.

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 by fires originating upon the land belonging to it "caused by operating such road," or originating on lands adjacent to its land "caused in whole or part by sparks from an engine passing over such railroad." The statutory liability of section 8970 is thus one founded upon and "growing out of the operation and maintenance" of the railroad, as provided in section 8814. It is this statutory liability which the plaintiffs assert against both defendants jointly as there provided, and the sole question for determination is whether such claim is made in good faith and presents an arguable and open justiciable question, or whether it is so clearly unsound and refuted by precedent, and so frivolous and specious by reason of the limitation in section 8814 to rights of action "for negligence or default," as to present no substantial question for decision. At the time of the passage of these statutory enactments the operation of railroads was regarded as fraught with peril to crops and structures upon adjoining lands. The sparks emitted from the smokestack of the engine was regarded as an ever-present danger which justified the requirement that such sparks and the resulting fires be so confined as to avoid injury to adjacent property, at the absolute risk of the railway. Baltimore & O. Ry. Co. v. Kreager, 61 Ohio St. 312, 56 N. E. 203. Considering this basis for the creation of an absolute statutory liability, we are of the opinion that these statutes at least present a substantial and debatable, even though possibly a still doubtful, question whether it is not an instance of "negligence or default" to permit the escape of fire to adjoining property, for which the lessor company is made jointly liable.

No federal authorities upon the precise question are cited to the court. In the case of Hukill v. Maysville & B. S. R. Co., 72 F. 745, it was held by Circuit Judges Taft and Lurton (later Mr. Chief Justice Taft and Mr. Justice Lurton), in a case in the Circuit Court for Kentucky, that the common-law liability of the lessor railway arose only upon a...