Bagenas v. Southern Pac. Co.

• Decision Date: 01 August 1910
• Docket Number: 15,067.
• Parties: BAGENAS v. SOUTHERN PAC. CO. et al.
• Court: U.S. District Court — Northern District of California

180 F. 887

BAGENAS v. SOUTHERN PAC. CO. et al.

No. 15,067.

United States Circuit Court, N.D. California.

August 1, 1910

Brennan & Lane and Costello & Costello, for plaintiff.

A. A Moore and Stanley Moore, for defendants.

VAN FLEET, District Judge.

This is a motion by plaintiff to remand the cause to the state court the material facts being these:

The action was originally commenced in the superior court of the city and county of San Francisco by the widow and minor children as the heirs at law of one George S. Eliopoulos, as plaintiffs, against the Southern Pacific Company, a corporation organized and existing under the laws of Kentucky, and one John Doe Marshall, a citizen of California and resident of this district as defendants, to recover damages resulting to the plaintiffs from the death of the husband and father claimed to have been caused through the joint negligence of the defendants; it being alleged that while deceased was lawfully a passenger on one of defendant corporation's trains, another train owned and operated by it and in charge of defendant Marshall as conductor was carelessly and negligently caused by the defendants to collide with the one on which deceased was riding, thereby derailing it and injuring him so that he died. To this complaint the defendant corporation answered, and the action subsequently went to trial. At the trial in response to a motion for nonsuit based, among others, upon the ground that plaintiffs had not capacity to sue, the plaintiffs asked leave to amend the complaint which was granted and the nonsuit denied. Thereafter what purported to be an amended complaint was filed in the action, but in the name of the present plaintiff, as administrator of the estate of said George E. Eliopoulos, deceased, against the same defendants the names of the original plaintiffs not appearing.

In the amended complaint, while he was named in the caption, no cause of action was stated against the defendant Marshall, but it was alleged that deceased while employed by the defendant corporation as a track repairer came to his death in the manner indicated in the original complaint through the 'negligence and carelessness of the defendant Southern Pacific Company in operating said trains. ' Thereupon before any further proceedings in the Superior Court, and before the defendant was required to answer such amended complaint, it procured the action to be removed to this court on the ground of diversity of citizenship.

The contention of the plaintiff in support of the motion is that the proceeding for removal came too late; that, if the right existed at all, it was open to the defendant corporation at the filing of the original complaint as fully as at the date the removal was had; and that by answering in the state court and going to trial the right was waived. This contention is based upon the theory now advanced by the present plaintiff that the defendant Marshall never was a necessary party to the action, and that this appeared upon the face of the original complaint; that, being sued by a fictitious name, he was to be regarded as merely a nominal or formal party whose presence did not at any time constitute an obstacle to a removal of the cause by his codefendant. But this attitude is not only a manifest stultification of the theory upon which the original complaint was framed, but involves an obvious misapprehension of the facts there alleged. It is true that it is held that a defendant sued purely by a fictitious name, without other facts identifying him as a proper or necessary party to the cause of action stated, will be regarded as a formal party merely, whose presence on the record will not affect the right of removal by one otherwise entitled thereto. But that is not this case. In the first place Marshall was not, strictly speaking, sued by a fictitious name. The use of the name 'John Doe Marshall' as alleged in the complaint did not imply that the name was wholly fictitious, but was to be taken as an averment that his surname was Marshall and merely his Christian name unknown to the plaintiffs. But in the next place he was distinctly identified by express averment as the conductor of the offending train, and as such a perfect cause of action was stated against him as a joint tort-feasor with his codefendant. A joint cause of action being thus stated against them, his codefendant was not at liberty to assume that Marshall was not sued in good faith, and, upon that assumption, seek to remove the cause. One may sue any or all of those jointly liable for a tort, and it does not lie with a defendant so sued to question the good faith with which his codefendants have been joined with him, even though such joinder may appear to be for the very purpose of preventing a removal of the cause. This principle is aptly stated by Judge Taft in Hukill v. Maysville, etc., R. Co. (C.C.) 72 F. 745, where it is said:

'If a plaintiff has a good cause of action for a joint tort against several defendants, it is not fraudulent in him to join them all in his suit, even if it does appear that he would not have joined the resident defendants with the nonresident defendants except for the purpose of avoiding the jurisdiction of the federal court. Where he has reasonable ground for a bona fide belief in the facts upon which the liability of all the defendants depends, his motive in joining them cannot be questioned. It is only where he has not, in fact, a cause of action against the defendants, and has no reasonable ground for supposing that he has, and yet joins them, in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal.'

See, also, Thomas v. Great Northern R. Co., 147 F. 83, 77 C.C.A. 255; Knuth v. Butte Electric Ry. Co. (C.C.) 148 F. 73.

And even though...