Culp v. Baldwin

• Citation: 87 F.2d 679
• Decision Date: 03 February 1937
• Docket Number: No. 10645.,10645.
• Parties: CULP v. BALDWIN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

87 F.2d 679 (1937)

CULP v. BALDWIN et al.

No. 10645.

Circuit Court of Appeals, Eighth Circuit.

February 3, 1937.

Tom W. Campbell, of Little Rock, Ark. (J. H. Lookadoo, of Arkadelphia, Ark., on the brief), for appellant.

Henry Donham, of Little Rock, Ark. (Robert E. Wiley, of Little Rock, Ark., on the brief), for appellees.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This action was originally brought by appellant in the state court of Arkansas, to recover damages for the death of appellant's intestate. We shall refer to the parties as they appeared below.

The action was brought against the trustees of the Missouri Pacific Railroad Company and two resident defendants. The trustees named were residents and citizens of St. Louis, Mo., while the plaintiff was a resident and citizen of Arkansas. On motion of the trustee defendants the action was removed to the federal court, on the allegation that a separable controversy existed as to such defendants. Plaintiff in due time moved to remand. The motion was submitted upon the record without other evidence or proof. The motion being denied, plaintiff declined to proceed further, and a judgment of dismissal was entered, from which this appeal is prosecuted. The sole issue presented arises from the action of the lower court in denying plaintiff's motion to remand. There being no claim of fraudulent joinder, and this being an action at law, the question as to whether a separable controversy is presented is to be determined by an examination of plaintiff's complaint, viewed from the standpoint of the law of the state of Arkansas. Leonard v. St. Joseph Lead Company (C.C.A.8) 75 F.(2d) 390.

The complaint is very brief. It alleges plaintiff's appointment and qualification as administrator; that plaintiff's intestate was struck by an automobile driven by defendant Robinson; that she left as her sole heirs at law certain named persons, all residents of Arkansas; that the defendant railroad company was a corporation organized and existing under the laws of Missouri, and that it was and is operating a line of railroad extending from St. Louis, Mo., to Texarkana, Ark., through the town of Gurdon, Ark.; that through voluntary proceedings for its reorganization, the trustee defendants were appointed, and were and are in possession and control of said line of railroad; that said trustee defendants were residents and citizens of St. Louis, Mo., and the defendants Robinson and Adkins were residents and citizens of Gurdon, Ark. Following these preliminary and formal allegations, the cause of action is stated as follows:

"Plaintiff states that this is a suit for damages for personal injuries, pain and suffering that plaintiff's intestate received on the 11th day of June, 1935, about eight o'clock A. M., when she was standing on the sidewalk on the north side of the street that crosses the Missouri Pacific Railroad, the first crossing north of the coal chute in the Town of Gurdon, Clark County, Arkansas.

"That the defendant Missouri Pacific Railroad Company had carelessly and negligently left one of its freight trains standing across the crossing, for an unusual length of time and contrary to its custom; that defendant T. O. Adkins had driven his truck up to the crossing and waited for the train to be cut for some fifteen minutes and decided that defendant Railroad Company was not going to cut the train in any time soon and carelessly and negligently backed his truck and trailer back into the street that runs parallel with the railroad company's tracks, north and south, just as defendant A. G. Robinson was going north on the street running parallel with the railroad at a careless and negligent rate of speed without having his car under proper control and precaution, glanced the back end of the trailer that was being backed into the street by Adkins which caused him to lose control of the car and he left the street, ran onto the sidewalk and hit plaintiff's intestate, knocked and dragged her some twelve or fourteen feet, injuring her head, crushing her shoulder and bruising other parts of her body to the extent that she died within two hours from that time."

The other allegations go to the question of damages and are not here material.

Is a joint liability arising out of the concurrent negligence of the nonresident and resident defendants alleged? If so, there being no claim of fraudulent joinder, the motion to remand should have been granted. On the other hand, if the nonresident defendants are charged with different and nonconcurrent negligence, a separable controversy is presented. Beal v. Chicago, B. & Q. R. Co. (D.C.) 298 F. 180, 181; Jackson v. Chicago, R. I. & P. Ry. Co. (C.C.A.8) 178 F. 432; Trivette v. Chesapeake & O. R. Co. (C.C.A.6) 212 F. 641, 643; Epperson v. Midwest Refining Co. (C.C.A.8) 22 F.(2d) 622; Des Moines Elevator & Grain Co. v. Underwriters Grain, Assn. (C.C.A.8) 63 F.(2d) 103, 106; Stewart v. Nebraska Tire & Rubber Co. (C.C.A.8) 39 F.(2d) 309; Davis v. St. Louis & S. F. Ry. Co. (D.C.) 8 F.Supp. 519, 521; Coker v. Monaghan Mills (C.C.) 110 F. 803; Simkins Fed. Practice, § 1170; 4 Hughes Fed. Practice, § 2376.

The only allegation charging the defendant Missouri Pacific Railroad Company with negligence is as follows: "That the defendant Missouri Pacific Railroad Company had carelessly and negligently left one of its freight trains standing across the crossing for an unusual length of time and contrary to its custom." As to the defendant Adkins, it is alleged that after waiting for the train to be cut for some fifteen minutes, he decided the Railroad Company was not going to cut the train "in any time soon, and carelessly and negligently backed his truck and trailer back into the street." It is then alleged that defendant Robinson carelessly and negligently struck the back end of the trailer being backed by Adkins, causing him to lose control of his car which left the street and hit plaintiff's intestate.

It is observed that concurrent negligence between defendants Adkins and Robinson is alleged, at least by inference. The railroad company, however, is not charged nor concerned with the alleged negligence relating to the backing up of the automobile by Adkins, nor the careless driving by Robinson. There is no allegation of concurrent negligence, and it appears from the allegations of the complaint that the alleged negligence of the defendant railroad company did not concur with the negligence of either of the other defendants in causing plaintiff's intestate's injuries. Under these circumstances, the issue between the plaintiff and the trustee defendants presented a separable controversy.

In Simkins Federal Practice, § 1170, the rule is thus stated: "So, where separate acts of negligence are charged, without alleging that they were concurrent in producing injury, a separable controversy arises as to the nonresident defendant. The same has been held where the liability arose under different statutes fixing different grounds of liability."

In 4 Hughes Federal Practice, § 2376, the author says: "The test of such a controversy is the cause of action stated in the complaint. If it is joint in character and no attack is made upon the good faith of the action, no separable controversy is presented as a basis for removing the cause. But if a complaint in a joint action for tort by a resident plaintiff against a resident and non-resident defendant fails to allege facts showing a joint cause of action, or alleges facts showing separate causes, or fails to allege facts showing any cause of action against the resident defendant, there is a separable controversy which entitles the non-resident to remove the cause. * * *"

In Beal v. Chicago, B. & Q. R. Co., supra, Judge Faris, then District Judge, said:

"When two or more grounds of alleged negligence are...