Chi., R. I. & P. Ry. Co. v. Witt
Decision Date | 08 April 1930 |
Docket Number | Case Number: 16087 |
Parties | CHICAGO, R. I. & P. RY. CO. v. WITT et al. |
Court | Oklahoma Supreme Court |
¶0 1. Master and Servant -- Joint Action Against Railroad and Section Foreman for Injuries Received at Crossing--Petition Held not to State Cause of Action Against Foreman.
In an action of tort by a third party against a section foreman joined as a party defendant with his employer, a railroad company, which is by law charged with the duty of constructing and maintaining a crossing over its railroad tracks and right of way at an intersection of a public highway, unobstructed and in good condition for the use of the public, to recover for personal injuries alleged to have resulted from the master's negligent construction and maintenance of its tracks at such crossing, a petition which alleges that the employee "negligently and carelessly maintained" such tracks, without a statement of facts showing in what the negligence of the employee consisted whereby he committed a breach of or omitted a duty to the injured party for which the employee may be held liable as a principal, fails to state a cause of action against the employee.
2. Same--Removal of Causes--Right of Nonresident Defendant to Removal of Cause to Federal Court Where Petition States no Cause of Action Against Codefendant.
In an action of tort, where the plaintiff joined a resident employee as a party defendant with his nonresident employer, to recover for personal injuries alleged to have resulted from the master's negligent construction and maintenance of its railroad tracks at an intersection with a public highway, and the petition on its face shows no cause of action against the resident employee, the joinder of such employee is in law a wrongful joinder, and constitutes no bar to a removal of the cause to the district court of the United States; and in such case, denial of a petition for removal based on that ground and timely filed by the nonresident defendant is reversible error, where such petition alleges the requisite grounds of original federal jurisdiction of the cause as against the nonresident defendant.
Commissioners' Opinion, Division No. 1.
Error from District Court, Garvin County; A. C. Barrett, Judge.
Action in tort by F. H. Witt against the Chicago, Rock Island & Pacific Railway Company, a foreign corporation, and Columbus Arney, a resident employee. Judgment for plaintiff and the resident defendant, and the corporation defendant appeals. Reversed and remanded, with directions to sustain the petition for removal to the District Court of the United States.
W. R. Bleakmore, John Barry, A. T. Boys, and W. F. Collins, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter, and A. G. Morrison, of defendant in error.
¶1 In this cause the parties will be referred to in the order of their appearance in the trial court. There, F. H. Witt brought suit for $ 50,000 in a personal injury action against the Chicago, R. I. & P. Railway Company, a foreign corporation, in which he joined as a codefendant one Columbus Arney, employed as section foreman by the railroad company, who resided at the town of Yukon, Okla., where the alleged cause of action arose. Plaintiff alleged that he, without negligence on his part, suffered injury to his person at a particular street crossing over the railroad right of way through the town of Yukon, and predicated his right of recovery against defendants as follows:
¶2 In conformity to law, the defendant railroad company timely filed its petition for removal of the cause to the federal district court, wherein, following appropriate jurisdictional pleadings, it was alleged:
¶3 To the petition of removal, plaintiff filed his response of denial of the grounds thereof. Upon hearing, the court denied the petition, to which ruling the defendant railroad company saved and preserved its exceptions. Thereupon defendants filed their separate answers of general denial. Upon trial there was a jury verdict for the plaintiff and the defendant Arney. Judgment on the verdict against the defendant railroad company for $ 15,000 followed, from which the defendant railroad company appealed.
¶4 The defendant complains of the judgment under five specifications of error; the first, and in our view the controlling assignment, being as follows:
"All proceedings had in said cause in the district court of Garvin county, Okla., subsequent to the filing of the petition for removal, with proper notice and the required bond, were coram non-judice and void."
¶5 Thereunder, the decisive question presented is: Does plaintiff's petition state a cause of action against the defendant Columbus Arney? If not, the court erred in denying the petition for removal and the proceedings subsequent to the adverse action were of no legal force or effect. New England Oil & Pipe Line Co. v. Broyles, 87 Okla....
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Duncan v. Flagler
...and decisions in support of their contention that the servant is not liable. 49 A. L. R. 521, 20 A. L. R. 97, and Chicago, R. I. & P. R. Co. v. Witt, 144 Okla. 246, 291 P. 59, and the line of cases cited therein including Cincinnati, New Orleans & Texas Pacific Railway Co. v. Robertson, 115......