Arrowsmith v. Nashville & D. R. Co.

• Decision Date: 27 July 1893
• Docket Number: 2,929.
• Citation: 57 F. 165
• Parties: ARROWSMITH v. NASHVILLE & D. R. CO. et al.
• Court: U.S. District Court — Eastern District of Tennessee

57 F. 165

ARROWSMITH v. NASHVILLE & D. R. CO. et al.

No. 2,929.

United States Circuit Court, E.D. Tennessee, Northern Division.

July 27, 1893

John T Allen and Flournoy Rivers, for plaintiff.

W. G Hutcheson and Z. Ewing, for defendant Louisville & N. R. Co.

W. H McCollum, for defendant Nashville & D. R. Co.

LURTON Circuit Judge.

This case is now heard upon a plea in abatement and a motion to remand to the state court, from which the case was removed on petition of the Louisville & Nashville Railroad Company. The Nashville & Decatur Railroad Company is a corporation created by the laws of the state of Tennessee. It owned and operated a line of railway extending from Nashville, in the state of Tennessee, to Decatur, in the state of Alabama. The Louisville & Nashville Railroad Company is a Kentucky corporation, whose original line extended from Louisville, in the state of Kentucky, to Nashville, in the state of Tennessee, where it connected with the Nashville & Decatur Railroad. In 1871 this nonresident corporation leased the railway line of the Tennessee corporation, together with all its rolling stock of every kind, under a lease for 30 years; and since that time it has been in exclusive control and possession of the leased line, running and operating it as a part of its own line, and in its own name as lessor. In September, 1892, David S. Martin sustained injuries from which he died while traveling over that part of the leased line within the state of Alabama as a United States railway mail clerk, and having in his care and custody the United States mail. The plaintiff, as administrator upon the estate of said Martin, brought this suit under and by virtue of the Alabama and Tennessee statutes, giving and defining such actions against both the lessor and lessee corporations, to recover damages for the death of his intestate. For the purposes of this case, we shall treat the deceased as in all respects a passenger for hire. The Louisville & Nashville Railroad Company having contracted for the carriage of the United States mail over this leased line, contracted at the same time safely to carry the mail clerks having lawful custody thereof. The compensation for the carriage of such clerks must be regarded as included in the compensation paid by the government for the carriage of its mails. It is immaterial who pays the compensation for the carriage of such passenger. The legal relation of passenger and carrier must be taken to have existed at the time of his injury between the deceased and the Louisville & Nashville Railroad Company, with whom the contract for his carriage had been made by the government.

The declaration, in substance, charges that while being thus carried as a passenger for hire the deceased, in the discharge of his duty, was standing in the open door of the mail car, and was struck and violently thrown from it while passing the extended arm of a mail crane. This crane was a machine standing in close proximity to the passing train, and was placed there by the railroad company, or by its consent, for the purpose of holding the mail pouch to be taken into the car by one of the clerks thereon as the train passed, without stopping. Plaintiff charges that the crane was placed too close to the passing train, and that the track of the defendant company opposite the crane was out of repair, the cross-ties being decayed, causing a 'low-joint,' which operated to cause the car as it passed to careen towards the side on which the crane was, thus bringing it into such proximity to the arm of the crane as to strike the deceased, standing in the door, as he was obliged to do to take the pouch from the crane. There is no allegation that this crane was so improperly placed by the Nashville & Decatur Railroad Company before its lease, or that at the time of the lease the track and roadway of the said Nashville & Decatur Railroad was not in good repair. On the contrary, it satisfactorily appears that this machine was placed on the right of way by permission of the lessee company, long after it took possession, and that the 'low joint' which operated to careen the car towards the crane did not exist when the lease was made, but was a consequence resulting from decay of cross-ties occurring thereafter.

The petition of the Louisville & Nashville Railroad Company, upon which the state court directed the removal of the cause to this court, charges:

'That said Nashville & Decatur Railroad Company is neither a necessary nor a proper party defendant in this cause; that said Nashville & Decatur Railroad Company was made a party defendant in this cause with the sole and single purpose to prevent a removal by petitioner of this cause to the circuit court of the United States for the middle district of Tennessee, and thereby unlawfully to deprive petitioner of a right conferred upon it by the constitution and laws of the United States. Wherefore your petitioner states that in this suit, brought by plaintiff against it and the sham defendant, said Nashville & Decatur Railroad Company, there is a controversy which is wholly between citizens of the different states, and which can be fully determined as between them, to wit, a controversy between your said petitioner, who avers that it was at the commencement of this suit, and still is, a citizen of the state of Kentucky, and the said H. Arrowsmith, administrator of the estate of D. S. Martin, deceased, who, your petitioner avers, was at the commencement of this suit, and still is, a citizen of the state of Tennessee, in which state this suit was brought; and that both the said Arrowsmith, administrator of the estate of D. S. Martin, deceased, and your petitioner, are actually interested in said controversy.'

To support this averment the petition further recites that the said plaintiff, Arrowsmith, administrator, on the 31st day of October, 1892, brought suit in the circuit court of Giles county, upon the same cause of action stated in the present suit, against the petitioner alone; that upon the filing of the declaration the Louisville & Nashville Railroad Company on the 5th day of December, 1892, filed its petition to have said cause removed to the circuit court of the United States for the middle district of Tennessee; that said application was granted, and a transcript of the record in said cause was filed in said United States court; that afterwards, on the 1st day of April, 1893, said Arrowsmith dismissed the said suit so begun in October, 1892, and thereafter, to wit, on the 4th day of April, 1893, instituted the present suit in the same state court, for the same cause of action, joining as a defendant the said Nashville & Decatur Railroad Company, a resident of the state of Tennessee. The petition further avers that at the time of said injury and now the said Louisville & Nashville Railroad Company was perfectly solvent; that it was at said time in sole and exclusive occupation of the railway built and owned by the Nashville & Decatur Railroad Company, and had been exclusively using and occupying said road for more than 20 years, and the said Nashville & Decatur Railroad Company ran no trains, carried no mails or passengers; that the lessee alone undertook the care and repair of the said leased line and exclusive control of said line by and through its own servants; and that, if any liability existed by reason of the injury sustained by the deceased, the responsibility rested in law and in fact upon the said lessor company.

To entitle the petitioner to a removal it must be made to appear that a separable controversy exists. 'A controversy is not separable when a defendant, who would otherwise be entitled to remove the suit, is charged as jointly liable with another defendant who is a fellow citizen of the plaintiff.' Fost. Fed. Pr. § 384. A separable controversy is not presented because the plaintiff has elected to sue two as jointly liable, when he might have sued either separately. If he states in his pleadings a cause of action which is joint, and elects to join as defendants all who are jointly liable, it is not for the defendants to complain that he need not do so. That ultimately it may turn out that one was not liable at all, and the other exclusively so, is a question on the merits, and does not affect the jurisdiction any more than that the final issue might be the nonliability of either or the liability of both. For the purpose of determining whether a controversy is separable, the allegations of the pleadings must be taken as true. Hyde v. Ruble, 104 U.S. 407; Ayres v. Wiswall, 112 U.S. 193, 5 S.Ct. 90; Plymouth Con. Gold Min. Co. v. Amador & S. Canal Co., 118 U.S. 264, 6 S.Ct. 1034; Railroad Co. v. Wangelin, 132 U.S. 599, 10 S.Ct. 203. Neither will the filing of separate defenses, tendering distinct issues by several defendants on a joint cause of action in tort, operate to divide the suit into separate controversies, so as to make it removable into the United States courts. Pirie v. Tvedt, 115 U.S. 41, 5 S.Ct. 1034, 1161; Railroad Co. v. Ide, 114 U.S. 52, 5 S.Ct. 735.

That 'a defendant has no right to say that an action shall be several, which a plaintiff elects to make joint,' is practically conceded by counsel resisting the motion to remand. Their contention is this: That if, in point of fact the plaintiff has no cause of action whatever against the resident defendant, and such defendant has been joined as a defendant with the sole purpose of defeating the right of the real defendant to remove the action against it to the circuit court of the United States, then such misjoinder operates as a legal fraud, and will not be permitted to deprive the nonresident defendant of its constitutional right of removal. The doctrine contended for was thus stated by Mr....