Syllabus
by the Court.
Complaint
alleging railroad foreman negligently maintained tracks at
crossing, without stating facts, did not state cause of
action against foreman (Comp. St. 1921, § 5533).
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
construction 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.
Joinder
of resident employee with foreign railroad is no bar to
removal to federal court, where petition on face shows no
cause of action against employee; denial of nonresident
defendant's timely petition for removal to federal court
for wrongful joinder of resident defendant held
reversible error.
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.
Additional Syllabus by Editorial Staff.
To give
injured third person cause of action against employee
negligence charged must establish breach of duty for which
employee is answerable as principal.
Commissioners'
Opinion, Division No. 1.
Appeal
from District Court, Garvin County; A. C. Barrett, Judge.
Action
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 defendants
appeal.
Reversed
and remanded, with directions to sustain petition for removal
to the District Court of the United States.
CLARK
J., MASON, C.J., and HUNT, J., dissenting.
TEEHEE
C.
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 Chicago, Rock
Island & Pacific 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, Okl., 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:
"That
it was the duty of the defendant, The Chicago Rock Island
and Pacific Railway Company, its general manager,
roadmaster and the defendant Columbus Arney, to keep the
above mentioned streets, where they cross the defendant
railway company's station grounds and right of way in
the said town of Yukon free from obstructions, and to
maintain the said streets where they cross said station
grounds and right-of-way free from obstructions and defects
and in good condition for the use of the public, so that
passengers and intending passengers, travelers on the
highway and pedestrians, could use the said streets and
highways without endangering themselves, and so that the
usefulness of said streets and highways by the public
should not be impaired, and which the defendants and each
of them negligently and carelessly failed and omitted to
do, as will hereinafter be more fully set out, and
resulting in painful and permanent injuries to the
plaintiff, as will be hereinafter described.
"That
on or about the 13th day of January, 1923, at about 6:00
o'clock A. M. the plaintiff went to the said station at
said town of Yukon for the purpose of taking a west bound
train. That he was told by defendant's station agent
that the first train which would arrive, would not carry
him to his intended destination, but that he must wait for
a later train; that while waiting for said train plaintiff
had occasion to attend a call of nature and it appearing to
plaintiff that there was a convenient place for that
purpose on the north side of defendant's railway
company's tracks he crossed the said tracks walking
north on Third Street, and after being relieved was
returning to the said railway station, walking south on
said Third Street as it was necessary to do to reach the
station, and while walking in a southerly direction on said
Third Street where it passes over the station grounds and
right-of-way of said defendant railway company, his feet
came in contact with one of the rails of said railway
company's track, which said defendant railway company
had carelessly and negligently laid across said street, and
which the said company, its general manager, roadmaster and
section foreman, the said Columbus Arney had negligently
and carelessly maintained; that said rail constituted an
obstruction in and across the said street, extending
abruptly some six or eight inches above the level of said
street making it dangerous to travelers and pedestrains
using the said street, and impairing the usefulness of same
to the public; that it was dark and the said defendant
railway company negligently and carelessly failed and
omitted to sufficiently light that part of its said station
grounds and right-of-way which were crossed by said street,
so that plaintiff was unable to see said obstruction, and
when his feet came suddenly and unexpectedly against the
said rail, he was thrown violently to the ground and under
a train which was moving in a westerly direction, causing
him to be seriously and permanently injured."
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:
"That
the said Columbus Arney was wrongfully and fraudulently
joined as a defendant in this said action, for the sole
purpose of preventing a removal of this cause to the proper
United States District Court; that the joinder of said
Columbus Arney as a party defendant in this cause was made
in bad faith and without any reasonable basis
therefor," for the reasons that the place of injury
was not a public highway across its tracks which had been
laid by the defendant railway company, "in the early
part of the year 1917 at the proper and regular height,
conformably to standard plans and specifications, and have
ever since been and remained in identically the same place
and position in which they were originally placed, and did
not on the 13th day of January, 1923, and never have
crossed over or in any way obstructed the said Third or any
street or public highway in said town of Yukon.
"That
the said Columbus Arney at no time while employed as
section foreman, or in any other capacity by this
petitioner, or upon the railroad of this petitioner, ever
had any supervision or control over the laying and
maintenance of said rails and railroad tracks at the place
where plaintiff was injured, or any right or authority to
interfere in any respect with the location of the same, or
to move, raise or lower the same from or out of the
original location and position in which the same were
placed in the year 1917, and that the said Columbus Arney
in truth and in fact never in any way changed the location
or position of said rails and tracks from or out of the
place in which they were laid in the year 1917; that all of
the facts hereinbefore alleged and set forth were
intimately known to the plaintiff, or by the exercise of
any degree of diligence could have been known to him, and
that, as was well known to the plaintiff, the said Columbus
Arney was not present at the time plaintiff received the
injuries for which he seeks recovery of damages in this
action, and was in no manner or respect accountable for or
chargeable therewith."
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.
The
defendant complains of the judgment under five specifications...
