Louisville & N. R. Co. v. Vincent

• Decision Date: 23 July 1906
• Citation: 95 S.W. 179
• Parties: LOUISVILLE & N. R. CO., et al. v. VINCENT.
• Court: Tennessee Supreme Court

95 S.W. 179

LOUISVILLE & N. R. CO., et al. v. VINCENT.

Supreme Court of Tennessee.

July 23, 1906.

Error to Circuit Court, Davidson County; John W. Childress, Judge.

Action by R. W. Vincent, as administrator of the estate of Joseph Vincent, deceased, against the Louisville & Nashville Railroad Company and others. From a judgment for plaintiff, defendants railroad and Edward L. Schubert bring error. Reversed and remanded.

Smith & Maddin, for plaintiffs in error. W. H. Washington and W. Hughes, for defendant in error.

McALLISTER, J.

The plaintiff below, as administrator of his minor son, Joseph Vincent, recovered a verdict and judgment in the Circuit court of Davidson county against the plaintiffs in error for the sum of $4,000, as damages for the alleged negligent killing of the deceased. John C. Hayes, the engineer of the corporate defendant, was also sued, but the jury returned a verdict in his favor. The railroad company and Edward L. Schubert appealed, and have assigned errors.

The declaration contains three counts, and in the first count charges that the deceased Joseph Vincent had been employed by the defendant company in the capacity of a cub or as a learner, and that at the time of his employment he was wholly inexperienced and ignorant touching his duties. It is then alleged that the company was guilty of negligence in failing to provide suitable and proper rules for instructing cubs, and for inducting them into its services, and in employing incompetent servants, as well as in maintaining a defective track at the point of the injury.

It then alleges that the railroad company delegated to the conductor and engineer and train crew the duties it owed the deceased of instruction and protection from danger. It further alleges that all of the defendants were guilty of negligence in failing to instruct and warn the deceased, as ordinary care required, and negligently ordered him to make a coupling at a point over a defective track, and that while the deceased was in between the cars, the defendant negligently caused the train to run over and kill him, and that all these acts of negligence combined to cause his death, and that his death was due to the joint, combined, and concurrent negligence of all of the defendants.

(2) It is alleged in the second count that the conductor ordered the deceased to make the coupling at a defective and dangerous place in the track, and that while there, the conductor and engineer negligently moved the train and killed him; that all of said acts of negligence joined to cause his death, and that his death was due to the joint negligence of all the defendants.

(3) It is charged in the third count that deceased was a cub and learner, as set out in the first and second counts of the declaration, and charges that the defendants negligently failed to warn deceased the train would move, and negligently failed to warn the engineer that deceased had not come out and that the engineer negligently moved the train before deceased came out. And that said acts of negligence jointly contributed to and caused the death of deceased, and that his death was the result of the joint negligence of all the defendants. This is a condensed statement of the action as laid in the several counts of the declaration.

A preliminary question arises on the record which must be considered before entering upon an investigation of the remaining assignments of error, viz.: The right of removal of the defendant railroad company.

It appears from the wayside bill of exceptions that on the 20th of November, 1903, the defendant railroad company filed a petition to remove the cause to the United States Circuit Court. The proper allegations were made in respect of citizenship, the amount involved, and the further averment that the allegations of joint negligence contained in the declaration did not as a matter of law, state a case of joint negligence.

It was further averred in the petition that the declaration alleged a separate and separable controversy with the railway company alone, in that it averred that deceased was placed to work upon a defective, unballested track, full of holes and uneven, which exposed him to unusual dangers. It was not alleged therein that it was any part of Schubert's or Hayes' duty to ballast the track or keep it in good condition, but this was wholly the duty of the petitioner, and therefore this was a controversy solely between plaintiff and petitioner.

The petition further averred that Schubert and Hayes were fraudulently joined for the sole purpose of defeating the jurisdiction of the United States Circuit Court, and of fraudulently preventing petitioner from removing the cause to the United States Circuit Court; that Hayes and Schubert were men of reasonably moderate means, unable to pay any such sum as was sued for — $30,000. Petitioner was solvent, and good for any sum that might be awarded.

An answer was filed to this petition by the plaintiffs below, denying that Schubert and Hayes were fraudulently joined as defendants, or for any illegal or improper purpose; that plaintiff joined them because the law gave him the right to sue all who were guilty of joint and concurrent negligence in causing the death of the deceased, and stating that Schubert and Hayes earned from $1,800 to $2,500 a year.

The circuit court, upon a consideration of the petition and answer, declined to allow the removal of the suit.

It further appears that upon the close of the argument of counsel, and after the defendant's evidence had been heard, but before the court had charged the jury, the defendant railroad company filed another petition to remove the cause to the United States Circuit Court. That petition was in due form and embodied the usual statutory requirements, and was duly verified. It also referred to the original petition for the right of removal and readopted and reaffirmed the allegations contained therein.

In addition to these averments, it was charged in the petition that counsel for plaintiff, in his concluding address to the jury, made use of the following language, viz.: "It is proper that I should state to you why we joined the defendants Hayes and Schubert in this suit. We did not expect Mr. Hayes or Mr. Schubert to pay this judgment, or much of it, any way. They have not much means. I do not care what becomes of Hayes. You may find a verdict in his favor. We simply joined these people to prevent the removal of this case to the federal court and to keep it in a Tennessee court and before a Tennessee jury. But when you come to consider the case, don't turn Schubert loose just out of sympathy for him, because the minute you do the defendant company will file a petition to remove this case to the United States Circuit Court."

The petition then charges that said Schubert and Hayes were fraudulently joined for the sole purpose of preventing the removal of this case to the federal court, as evidenced by the above statement of the plaintiff, through his counsel.

It is further averred in the petition that on the trial of the case, the allegations in the declaration charging concurrent and joint negligence were not sustained by the proof, and there was no proof made in the case under which any judgment could be properly rendered against either Mr. Hayes or Mr. Schubert, and there was not any proof under which any joint judgment could be rendered against either Mr. Hayes or Mr. Schubert, and there was not any proof under which any joint judgment could be rendered against any two or more of the defendants, and no proof of joint or concurrent negligence.

It was further averred that plaintiff's counsel had admitted in open court that there was no proof of negligence under which Mr. Hayes would be held or under which any verdict could be rendered against him. The petitioner further states that this petition to remove the cause was filed after the argument of counsel, and before the court charged the jury, it being filed as the next step in the cause after said argument was made by plaintiff's counsel.

The court overruled the prayer of the petition for a removal of the cause, to which action counsel for the railroad company excepted, and filed a bill of exceptions.

The action of the trial judge in overruling the application for the removal of the cause is assigned as error, for the following reasons, viz.:

(1) Because the allegations of the declaration did not state a joint cause of action.

(2) Because the case contained a separate and separable controversy solely between the plaintiff and the railroad company.

(3) Because the petition to remove alleged that the local defendants were fraudulently joined solely to prevent the removal of the case to the United States Circuit Court.

We will first notice the question of fraudulent joinder.

It is insisted that upon the allegations of the petition, it was the duty of the court of primary jurisdiction to order the removal to the United States Circuit Court and let that court try the question of fraudulent joinder. It is said that it was not within the jurisdiction of the state court to determine or try this question.

In Union Terminal Ry. v. C., B. & Q. R. R. (C. C.) 119 Fed. 210, the plaintiff sued the Chicago, Burlington & Quincy Railroad, a nonresident, and a local defendant, the Council Bluffs Railway, alleging joint and concurrent negligence. The Chicago, Burlington & Quincy Railroad filed a petition to remove on the ground of fraudulent joinder for the sole purpose of defeating removal. The cause was removed, and on motion to remand, the United States Circuit Court said: "It is a settled rule of procedure that where the petition alleges a joint cause of action against a resident and a nonresident, defendant, the cause is not removable, although it is averred in the petition for removal that the resident defendant has no interest in the controversy, or that the cause of action is not joint. Nor is it sufficient that the...