American Bridge Co. v. Hunt

• Decision Date: 21 May 1904
• Docket Number: 1,274.
• Citation: 130 F. 302
• Parties: AMERICAN BRIDGE CO. v. HUNT.
• Court: U.S. Court of Appeals — Sixth Circuit

130 F. 302

AMERICAN BRIDGE CO. v. HUNT.

No. 1,274.

United States Court of Appeals, Sixth Circuit.

May 21, 1904

The intestate of the plaintiff below was accidentally killed while engaged in the discharge of his duties as a servant of the American Bridge Company, and this suit is brought under the statute of Ohio to recover damages for a wrongful killing. The suit was instituted in a common pleas court of the state of Ohio. The defendants named in the writ were the American Bridge Company, a corporation of the state of New Jersey, carrying on a manufacturing business within the state of Ohio, Robert H. Finch, Phillip Haas, and Calvin Guthrie citizens of the state of Ohio. The petition, in substance charged that the defendant corporation had large shops at Toledo, Ohio, for the construction of iron bridges and other like structures. Among the appliances used in said shop was an electric crane, used in lifting moving, and handling heavy iron beams and other castings. It is averred that the crane was so worn and out of repair as to be hard to control, and that it was also negligently handled, and so managed as to cause certain iron beams standing upon the floor of the shop to be thrown down, and that they so fell as to crush, maim, and kill the deceased, whose duty required him to be upon the said floor and among the said beams and castings so caused to fall by the negligent operation of said crane. The plaintiff in error, the corporation, filed in due time a petition for the removal of the suit to the Circuit Court of the United States, alleging, among other things, that the suit was of a civil nature, and that the matter in dispute exceeded the sum of $2,000, exclusive of interest and costs. The ground upon which the removal was sought, as stated, was in these words: 'Your petitioner further shows that there is in said action a controversy wholly between citizens of different states, and which controversy is a separable controversy, and can be fully determined between them; that Joseph A. Hunt, administrator of the estate of Henry E. Baker, deceased, was at the time of the commencement of this action, and still is, a citizen of the state of Ohio, residing in said state, and that the said Henry E. Baker, deceased, was during his lifetime and at the time of his death a citizen and resident of the state of Ohio, residing at Toledo, in said state; that your petitioner, American Bridge Company, was at the time the alleged cause of action arose in said action, and at the time of the commencement of this action, and still is, a corporation duly organized and existing under and by virtue of the laws of the state of New Jersey, and a resident and citizen of that state. Your petitioner further shows that the defendants Robt. H. Finch, Philip Haas, and Calvin Guthrie were at the time of the commencement of the said action, and still are, citizens of the state of Ohio, residing at Toledo, in said state; that the cause of action as shown by the petition is not a joint cause of action against said defendants and your petitioner. ' Bond and security having been duly given as required by the statute, a certified copy of the record was filed in the court below. A motion to remand to the state court was made and denied. The pleadings were thereupon completed, and upon a trial there was a jury and verdict for the plaintiff against the defendant corporation only, and judgment thereon. The corporation has sued out this writ of error.

Doyle & Lewis and J. W. Schaufelberger, for plaintiff in error.

Charles A. Thatcher, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

There is a preliminary question which must be decided before considering the errors assigned, and that is whether the Circuit Court rightfully obtained jurisdiction by the proceedings under which the cause was removed from the state court. The decision of this question cannot be escaped, for it is the duty of the court at any stage of the litigation to dismiss or remand any suit in which a defect of federal jurisdiction shall appear, without regard to whether the question is made by the parties or not. Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 Sup.Ct. 690, 44 L.Ed. 842; Defiance Water Co. v Defiance, 191 U.S. 184, 24 Sup.Ct. 63, 48 L.Ed. 140. The right of the corporation to remove the suit depends upon whether the record, at the time of the removal, disclosed a separate controversy. The plaintiff had elected to join the corporation with three individual defendants, and to sue the defendants thus joined as joint tort feasors, and, if he has stated on the face of his pleading a cause of action which is joint, he had a right to maintain his suit against all who are liable to him, even though he might have brought separate suits for the same tort against each of those he has chosen to join. Nor does the fact that each defendant so sued might present separate and different defenses defeat the right to sue them in one action. The test of the entirety of the action, and the consequent right to join several defendants in one suit, is found in the legal concert or identity of the defendants in the same tortious act or in concurring acts of negligence contributing to same injury. These principles, so far as they are applicable to the ascertainment of a separable controversy for purposes of removal under the statute, seem to be too well settled to admit of further debate. Pirie v. Tvedt, 115 U.S. 41, 43, 5 Sup.Ct. 1161, 29 L.Ed. 331; L. & N.R. Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed. 473; C.&O. Ry. Co. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121; Arrowsmith v. Nashville & D.R. Co. (C.C.) 57 F. 165, 169. Whether there is such legal identity of master and servant, or concert between them, as to justify a joint action when the act of negligence charged is that of the servant alone, and the liability of the master is bottomed not upon any immediate fault of the master, but upon the liability of the latter for the negligent acts of the servant, may admit of much discussion. Warax v. C.N.O.&T.P. Ry. Co. (C.C.) 72 F. 637; Bryce v. Southern Ry. Co. (C.C.) 122 F. 709; Davenport v. Southern Ry. Co. (C.C.) 124 F. 983; Helms v. N.P. Ry. Co. (C.C.) 120 F. 389; Mulchey v. Society, 125 Mass. 487; ...