Buchanan v. W.M. Ritter Lumber Co.
| Decision Date | 04 November 1913 |
| Docket Number | 1159. |
| Parties | BUCHANAN v. W. M. RITTER LUMBER CO. et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. W Pless, of Marion, N.C. (John C. McBee, of Bakersville, N.C on the brief), for plaintiff in error.
Landon C. Bell, of Columbus, Ohio (James H. Merrimon, of Asheville N.C., on the brief), for defendants in error.
Before PRITCHARD, Circuit Judge, and CONNOR, District Judge.
This action is prosecuted by plaintiff, as administrator of Richard Buchanan, deceased, for the recovery of $30,000 damages alleged to have been sustained on account of the death of his intestate caused by the negligence of the defendants. The action was brought in the superior court of McDowell county, and upon the petition of defendant lumber company, a citizen and inhabitant of the state of West Virginia, removed into the District Court of the United States for the Western District of North Carolina. Plaintiff and defendant Joe Effler are citizens and residents of the state of North Carolina. Plaintiff, in apt time, lodged a motion to remand the case to the state court. The motion was resisted by defendant lumber company upon the contention that the complaint set out separate causes of action against defendants, upon each of which defendants would rely upon different defenses supported by different evidence; that their liability was dependent upon different principles of law, etc. Defendant further alleged that its codefendant was insolvent and that their joinder was for the purpose of preventing the removal by the nonresident defendant into the federal court. The motion to remand was refused; the court assigning no reason therefor, nor finding any facts. Plaintiff saved his exception, and, after a trial upon the issues, resulting in a verdict for defendants, directed by the court, sued out this writ of error, assigning as error the refusal of the court to grant his motion to remand.
The record contains other assignments of error which, in the view which we take of the record, need not be discussed. It will be taken that the refusal to remand was based upon the opinion of the court below that the complaint stated separate causes of action against each defendant. It was so argued in this court. It is well settled that, if the complaint states a joint cause of action against both defendants, the motive which prompted the joinder is immaterial. The exercise of a legal right cannot be said to constitute a fraud upon the jurisdiction of the court.
The decision in Alabama G.S. Ry. Co. v. Thompson, 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147, is in point and decisive of the question presented upon this record. The questions there certified to the Supreme Court were:
(1) May a railroad company be jointly sued with two of its servants, one the conductor and the engineer of one of its trains, when it is sought to make the corporation liable only by reason of the negligent act of its said conductor and engineer in the operation of a train under their management and control, and solely upon the ground of the responsibility of a principal for the act of his servant, though not personally present or directing and not charged with any concurrent act of negligence?
(2) Is such a suit removable by the corporation, as a separate controversy, when the amount involved exceeds $2,000, etc., and the requisite diversity of citizenship exists between the said company and the plaintiff; the citizenship of the individual defendants, sued with the company as joint tort-feasors being identical with that of the plaintiff?
The court, after a review of the authorities, answers the first question in the affirmative and the second in the negative. The sole question, therefore, to be answered in this case, is whether the complaint sets out a case coming within the terms of the first question quoted above. It must be conceded that the complaint falls far short of compliance with the rule of pleading prescribed by the Code of Procedure of North Carolina, which directs that it contain:
'A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. ' Revisal, Sec. 467.
The plaintiff either had a confused idea in his own mind as to what facts constituted the basis of his complaint against the defendants, or, as is too frequent, failed to draw the distinction between 'facts constituting the cause of action' and 'evidentiary facts.' The latter should never be found in a pleading. It is difficult, in this case, to separate the two and ascertain the theory upon which the complaint is drawn. It appears, however, eliminating mere evidential averments, that while plaintiff's intestate was in the discharge of his duty as an employe of defendant Ritter Lumber Company, a common carrier operating a railroad for...
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