Boatner v. American Exp. Co.

• Decision Date: 22 May 1903
• Citation: 122 F. 714
• Parties: BOATNER v. AMERICAN EXP. CO. et al.
• Court: U.S. District Court — Western District of Kentucky

122 F. 714

BOATNER v. AMERICAN EXP. CO. et al.

United States Circuit Court, W.D. Kentucky.

May 22, 1903

Heavrin & Woodward and Glenn & Ringo, for plaintiff.

Pirtle Trabue & Cox and H. P. Taylor, for defendant the American Exp. Co.

EVANS District Judge.

The plaintiff, averring himself to be a citizen of Kentucky brought this action in the state court against the American Express Company, A. B. Schlitzbaum, C. J. Abbott, and E. D Graff, the three last of whom he especially avers to be citizens of Kentucky, to recover $28,000, alleged to have been delivered to the express company at Owensboro, Ky., for carriage to Fordsville, Ky., and which he says was lost by the gross and willful negligence of the company and its agents, the individual defendants, each of whom was an agent in some capacity, of the company. The plaintiff also avers that, at the time of the delivery of the money to the company, it executed and delivered to him a receipt therefor, which is set out in full in the petition, and which not only acknowledged the receipt of a package said to contain $28,000, but also embraced in full the terms of the contract made at the time between the plaintiff and the express company, in the usual form. In no one of the stipulations of that contract have either of the individual defendants any person concern, as separated from the company. However, the latter is admitted and alleged not to be a body corporate, but to be a joint-stock association or partnership organized under the laws of New York. It has a membership of two or three thousand persons, all of whom (unless, possibly, the defendants Abbott and Graff) seem to be citizens of states other than Kentucky; but the plaintiff, while declaring on the written contract, also avers not only that the individual defendants are citizens of Kentucky, but that the defendants Abbott and Graff are each members of the association. The laws of New York seem to give the association the right to sue and be sued by and through its treasurer for the time being, and section 25 of the Kentucky Civil Code of Practice is in this language: 'Sec. 25. When One may Sue or Defend for Others. If the question involve a common or general interest or many persons, or if the parties be numerous and it is impracticable to bring all of them before the court within a reasonable time, one or more may sue or defend for the benefit of all.'

No one of the two or three thousand partners or members of the association are sued by name or in person, unless it be the defendants Abbott and Graff, and it would be manifestly impossible to get all of the members of the association before the court personally within a reasonable time, if, indeed, those members who are not citizens of the state of Kentucky could ever be personally served with process at all. The American Express Company is not such a legal entity as can be sued as a corporation, but James C. Fargo, a citizen of New York, who admits that he is the company's treasurer, and one of its members, and therefore personally liable on its contracts, has voluntarily entered his appearance in the action in the state court, and has filed his petition therein for the removal of the action to this court, as being one between citizens of different states, namely, between the plaintiff, a citizen of Kentucky, and Fargo, a citizen of New York, the treasurer of the company, and a member thereof. The plaintiff, without denying any of the averments of the petition for the removal, has moved to remand the action to the state court, from whence, on the petition of Fargo, it was removed into this court. It may be that a strict practice would require a traverse by the plaintiff of the allegations of the petition for a removal, but the custom of this court has been to hold as controverted, without response, any allegations in a petition for removal which assert or attempt to show that the plaintiff had misjoined with himself citizens of his own state for the sole purpose of defrauding the jurisdiction of this court and defeating the right of removal. Possibly this may not be the correct practice, though I think it is; but it was acted upon in this case, and it would be unfair to the plaintiff, after a hearing a submission of the motion to remand, to permit any advantage to be taken by reason of the observance of that custom in this case under the circumstances; nor, indeed, has any advantage been sought on that account by the defendant, who at the hearing raised no such objection. The reasons upon which the court has pursued that course have been, first, because no presumption can be indulged that misjoinders for that purpose have been made; second, because strictness should be required where a removal is sought on an allegation that there has been a misjoinder for that purpose; third, because no statutory requirement of further pleadings has been found; and, fourth because the Supreme Court, in its opinion in Louisville & Nashville R. Co. v. Wangelin, 132 U.S. 601, 10 Sup.Ct. 203, 33 L.Ed. 473, has said that the removal cannot be maintained 'unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court.'

Upon these considerations, this court has heretofore acted upon the view that such averments in a petition for a removal should be treated as traversed, per se, by the law and by the motion to remand, and that, when such a motion is made, those averments should, in the language of the Supreme Court, just quoted, 'be proved.' These observations are made at this time because of late it would seem that some of the courts have required that such averments in a petition for a removal should be expressly denied, or else be taken as true. But, for the...