Burt v. Missouri Pac. R. Co.

• Decision Date: 22 January 1924
• Docket Number: 6466.
• Citation: 294 F. 911
• Parties: BURT v. MISSOURI PAC. R. CO. et al.
• Court: U.S. District Court — Eastern District of Arkansas

294 F. 911

BURT v. MISSOURI PAC. R. CO. et al.

No. 6466.

United States District Court, E.D. Arkansas, Western Division.

January 22, 1924

Frank Pace and T. W. Campbell, both of Little Rock, Ark., for plaintiff.

Thos B. Pryor, of Ft. Smith, Ark., and H. L. Ponder, of Walnut Ridge, Ark., for defendant railroad company.

TRIEBER District Judge.

The plaintiff instituted this action against the defendant railroad company and two of its employees, one the engineer and the other the fireman of the train which, it is alleged caused the death of the plaintiff's intestate. The complaint charged that the injury, from which death resulted to the intestate, was caused by the negligence of the defendants. It is alleged that, while the deceased was upon the track of said railroad in the act of crossing the same at a public crossing, in the town of Beebe, Ark., he was struck by a train, operated by the railroad company; the defendant Peter St. Claire being then the engineer in charge of and operating the engine of said train, and the defendant Watson Smith was then and there the fireman upon the engine of said train, both of them being employees of the defendant railroad company. The acts of negligence charged against the defendants in the complaint are:

'(a) That said defendants Missouri Pacific Railroad Company, Peter St. Claire, and Watson Smith, each and every one of them, negligently failed and neglected either to sound the whistle or ring the bell upon the locomotive of the said train constantly through the 80 rods traveled by said train immediately prior to reaching the said crossing, as required by the statute of Arkansas.

'(b) That the said defendants then and there neglected and wholly failed to ring the bell or sound the whistle of the engine of said train at all as said train approached said crossing, or to give any signal whatever to warn persons of the approach of said train, although said crossing was in the heart of said town of Beebe, and many people were then and there almost constantly coming and going along said street and over said crossing, which fact was known by said defendants; the said defendants therefore failed to exercise ordinary care for the safety of persons then and there about to cross over said crossing, in violation of the duty imposed upon said defendants by law, but carelessly and negligently ran said train over said F. T. Burt, causing his death as aforesaid.'

The railroad company, by proper petition and bond filed in the circuit court of White county, state of Arkansas, in which court the action was pending, removed it to this court. The grounds upon which the removal was sought are:

'That under the laws of the state of Arkansas, in which state the accident occurred, the defendants St. Claire and Smith are not liable for the acts, matters, and things set up in the plaintiff's complaint, and therefore the petitioner is in legal effect the sole defendant; that there is no cause of action in favor of plaintiff against its codefendants, or either of them, as there was no duty or obligation to plaintiff on their part either to sound the whistle or to ring the bell upon the locomotive constantly throughout the 80 rods traveled by said train immediately prior to reaching said crossing, and their neglect to do so, even if it should be true that they did so, created no cause of action in favor of plaintiff against them, or either of them.'

It is further charged in the petition:

'That they were joined as parties defendant for the fraudulent purpose of preventing the petitioner railroad company from removing this cause to the federal court, and for the fraudulent purpose of defeating the federal court of its jurisdiction; that neither of said codefendants has any money or property on which a judgment could be collected, as they are laboring men, wholly unable to respond in damages.' It is further alleged:

'That on June 5, 1922, the plaintiff, by the same attorneys now representing her in this action, instituted her action for the same injuries in the circuit court of Hempstead county, Ark., against the railroad company only, making the same allegations in said complaint, and praying the same relief as alleged and prayed in the complaint in this action; that, although plaintiff and her attorneys then knew all the facts alleged in this action, they did not make either of its codefendants parties defendant in that action; that in that action in the circuit court of Hempstead county, Ark., the petitioner filed its petition and bond for removal to the federal court, which motion was denied by said circuit court, and that after trial and verdict for the plaintiff in said cause in said court the petitioner appealed to the Supreme Court of Arkansas, on the ground, among others, that the trial court error in denying said petition for removal; that upon a hearing in the Supreme Court of Arkansas that court held that the circuit court of Hempstead county had erred in denying the removal, and reversed the cause, with directions to grant the petition to remove; that upon the filing of the mandate of the Supreme Court of Arkansas in said circuit court the cause was removed to the United States District Court for the Western District of Arkansas, and the transcript in regular course was lodged and the cause docketed, but before a trial could be had the plaintiff, through her attorneys, dismissed said cause on the 7th day of August, 1923, and immediately thereafter the plaintiff, through the same attorneys, filed this action in the circuit court of White county, except that they now add Peter St. Claire and Watson Smith as defendants, and praying the same relief as in the former action; that the object of making them codefendants is for the fraudulent purpose of preventing a removal of this cause to the federal court by the petitioner, and that it is not the purpose of this plaintiff or her attorneys, in making these employees parties defendant, to procure judgment against them, for the purpose of recovering or collecting any part of such judgment from them, but for the fraudulent purpose of preventing the removal by petitioner in this case to the federal court; that, so far as the petitioner's codefendants are concerned, the mere failure to perform the duties which it is alleged in the complaint they failed to do is a mere nonfeasance, and they are not liable for any injuries caused by these acts; that it is not alleged in the complaint that the defendant railroad company was present at the time of the alleged nonfeasance on the part of the engineer and fireman, and that it directed or authorized these acts, and the sole ground of recovery claimed in the complaint against this petitioner is that it is liable for the acts of its employees.'

The state circuit court having granted a removal, the plaintiff has filed a motion to remand. The motion to remand alleges:

'That the petitioner's codefendants are citizens of Arkansas, of which state the plaintiff is also a citizen, and that this is not a separable controversy, and that the plaintiff has, under the laws of the state of Arkansas, a legal cause of action against each and all of the three defendants, and that it had a right to join all of them in this action. It denies that these employees were joined as defendants for the fraudulent purpose of preventing the petitioner from removing this cause, or that said employees are without means, so that no judgment could be collected from them.'

The motion to remand is verified by one of the attorneys for the plaintiff....