Armstrong v. Kansas City Southern Ry. Co.

• Decision Date: 18 December 1911
• Citation: 192 F. 608
• Parties: ARMSTRONG v. KANSAS CITY SOUTHERN RY. CO. et al.
• Court: U.S. District Court — Western District of Arkansas

192 F. 608

ARMSTRONG v. KANSAS CITY SOUTHERN RY. CO. et al.

United States Circuit Court, W.D. Arkansas, Fort Smith Division.

December 18, 1911

King &amp Alley, for plaintiff.

Read &amp McDonough, for defendants.

YOUMANS District Judge.

This is a motion to remand this cause to the Polk county circuit court from which it was removed to this court. The suit was brought against the Kansas City Southern Railway Company and J. C. Hartzler for an injury sustained by the plaintiff while she was a passenger on a passenger train of the railway company, of which train the defendant Hartzler was engineer. The petition for removal sets up the following grounds First, diversity of citizenship between plaintiff and the railroad company, and a separable controversy as between them; second, the fraudulent joinder of defendant Hartzler for the purpose of preventing removal; third, that defendant Hartzler is in fact not a party to the suit on account of ineffective service; fourth, on account of prejudice and local influence.

The allegation of the complaint with regard to joint liability of the railway company and the engineer is as follows:

'Plaintiff states that her damages, as herein alleged, were caused by the gross negligence and carelessness of the defendant in the operation of said train No. 7, known as the 'Traveler'; that the defendant, J. C. Hartzler, who was the engineer, had orders to stop said train No. 7 at Hatfield until 8 o'clock p.m. on the evening of the injury complained of, and to wait there until such time as it would require freight train No. 56, north bound, to arrive at Hatfield, but that, disregarding said orders, the said engineer and other employes of the defendant the Kansas City Southern Railway Company caused said train to leave Hatfield before the said train No. 56 had reached Hatfield, and before 8 o'clock p.m., with the result that soon after leaving Hatfield the two trains collided in a head-on collision, all of which was caused by the gross negligence of the defendant and other employes, and for which both are liable in damages to this plaintiff.'

It appears from that allegation that the collision in which plaintiff was injured resulted from a disobedience of orders by the defendant Hartzler. The railroad company not only did not join in the negligence which caused the injury, but gave directions, which, if obeyed, would have avoided it. The question then is whether under those circumstances the controversy is separable under the removal section. There has been a difference of opinion in the federal courts on this question, but the Supreme Court seems to have decided conclusively that such a controversy is not separable. The question came before Circuit Judges Taft and Lurton in the case of Warax v. Cincinnati, N.O. & T.P.R. Railway Company (C.C.) 72 F. 637. The court said:

'Hence, the question is whether, when a master is held liable for the negligence of his servant in his absence, which negligence he did not direct, he can be said to have acted in concert with the servant to produce the injury in such a way as that he and the servant can be held liable in the joint action. Clearly not. His liability does not arise from any common purpose that he had with the servant, or from any actual unity of action between them, in point of time and effect, or otherwise. His liability arises simply and solely from the policy of the law, which makes him responsible for the acts of his servants done in the discharge of his business. The rule by which he is held is usually referred to as the rule of respondeat superior, which, says Mr. Pollock, in his work on Torts (4th Ed., p. 70), 'is a dogmatic statement, not an explanation.' * * * It will thus be seen that the master is not held on any theory that he personally interferes to cause the injury. It is simply on the ground of public policy which requires that he shall be held responsible for the acts of those whom he employs done in and about his business even though such acts are directly in conflict with the orders which he had given them on the subject. The liability of the servant, on the other hand, arises wholly because of his personal act in doing the wrong. It does not grow out of the relation of master and servant, and does not exist at all, unless it would also exist for the same act when committed, not as the servant, but as the principal. Liabilities created on two such wholly different grounds cannot and ought not to be joint.'

The court refused to remand that case. This decision was rendered on the idea that the term 'controversy' in the removal section was the equivalent of 'joint cause of action.' That case was followed in Helms v. Northern Pacific Railway Company (C.C.) 120 F. 389; Shaffer v. Union Brick Company (C.C.) 128 F. 97; Evensburg v. Insurance, Stove, Range & Foundry Co. (C.C.) 168 F. 1001. Without citing the Warax Case, the principal in that case was followed in Atlantic Coast Line v. Bailey (C.C.) 151 F. 891. In the last case the court cites and quotes, with approval, a portion of the opinion in the case of Creagh v. Equitable Life Assurance Society (C.C.) 88 F. 1. The language as quoted is as follows:

'That when a master is made liable for a negligent or wrongful act of his servant, solely upon the ground of the relationship between them, and the application of the rule of respondeat superior, and not by reason of any personal participation in the negligent or wrongful act, he is liable severally, and not jointly with the servant. I have considered it a logical sequence from this rule that, although the master and his delinquent servant be named as codefendants in such an action, the complaint shows affirmatively that there is no joint liability, and that either defendant may properly claim that there is a separable controversy between himself and the plaintiff.'

From the foregoing quotation and without reading the entire opinion in the Creagh Case, one would be led to the conclusion that the writer of the opinion applied the rule thus stated in the case before him and maintained its correctness. That, however, is not the fact. Judge Hanford, the writer of the opinion, states the rule which he had applied up to that time, and then stated that the Supreme Court had decided differently, and he, following that decision, which was contrary to the rule stated by him, on his own motion remanded the case before him. In the case of Lockard v. St. Louis & S.F.R. Co. (C.C.) 167 F. 675, the court followed the case of the Atlantic Coast Line R. Co. v. Bailey, and quoted that portion of the opinion which contained the quotations above mentioned in the Creagh Case. So that, the courts, in the Bailey and Lockard Cases, purporting to follow the Creagh Case, applied a rule which the court in that case not only did not follow, but decided to be contrary to the decisions of the Supreme Court. While in the case of Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 Sup.Ct. 264, 42 L.Ed. 673, the Supreme Court did not declare a rule different from the one in the Warax Case, still, it intimated strongly its disapproval of it.

In the case of Alabama Southern Railway Company v. Thompson, 200 U.S. 215, 26 Sup.Ct. 163, 50 L.Ed. 441, Mr. Justice Day, delivering the opinion of the court and referring to the opinion by Mr. Justice Gray in the Powers Case said:

'After thus stating the rule, the justice commented on the Warax Case, supra, as a departure from the former ruling of the Circuit Court. And while the Powers Case was decided on the ground of the right to remove after the local defendants had been dismissed from the action by the plaintiff, it is patent from the language just quoted from the opinion that, conceding the misjoinder of causes of action appeared on the face of the petition, that fact was not decisive of the right of the nonresident defendant to remove the action to the federal court.'

Further, in the same opinion, Mr. Justice Day said:

'In other words, the right to remove depended upon the case made in the complaint against both defendants jointly, and that right in the absence of a showing of fraudulent joinder, did not arise from the failure of the complainant to establish a joint cause of action.' Further, in the same opinion, Mr. Justice Day said:

'Does this become a separable controversy within the meaning of the act of Congress because the plaintiff has misconceived his cause of action and had no right to prosecute the defendants jointly? We think, in the light of the adjudications above cited from this court, it does not. Upon the face of the complaint, the only pleading filed in the case, the action is joint. It may be that the state court will hold it not to be so. It may be, which we are not called upon to decide now, that this court would so determine if the matter shall be presented in a case of which it has jurisdiction. But this does not change the character of the action which the plaintiff has seen fit to bring, nor change an alleged joint cause of action into a separable controversy for the purpose of removal. The case cannot be removed unless it is one which presents a separable controversy wholly between citizens of different states. In determining this question the law looks to the case made in the pleadings, and determines whether the state court shall be required to surrender its jurisdiction to the federal court.'

The Thompson Case went to the Supreme Court on a certificate from the United States Circuit Court of Appeals for the Sixth Circuit, and a decision was asked on the following questions:

'1. May a railroad corporation be jointly sued with two of its servants, one the conductor and the other the engineer of one of its trains, when it is ought to make the corporation liable only by reason of the

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