Dillinger v. Chicago, B. & QR Co.

• Decision Date: 04 June 1927
• Docket Number: No. 7551.,7551.
• Citation: 19 F.2d 196
• Parties: DILLINGER v. CHICAGO, B. & Q. R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 196 (1927)

DILLINGER v. CHICAGO, B. & Q. R. CO. et al.

No. 7551.

Circuit Court of Appeals, Eighth Circuit.

April 23, 1927.

Rehearing Denied June 4, 1927.

George H. Hubbell, of Trenton, Mo. (Platt Hubbell, of Trenton, Mo., on the brief), for appellant.

J. G. Trimble, of St. Joseph, Mo. (H. J. Nelson and E. M. Spencer, both of St. Joseph, Mo., on the brief), for appellees.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

BOOTH, Circuit Judge.

This is an appeal from an order denying a motion to dissolve a temporary injunction and continuing the same in force. The injunction restrained appellant, hereafter called plaintiff, from proceeding to trial or taking further steps in an action at law pending in the state circuit court of Sullivan county, Missouri, which action was brought by plaintiff against the appellee, hereafter called defendant railway company, and six individual defendants. The short facts leading up to the order appealed from are substantially as follows:

February 11, 1924, plaintiff brought the above-mentioned action in the state court to recover damages on account of the death of plaintiff's intestate. The complaint set out that the death was due to injuries received in a collision at a public highway crossing between one of defendant railway company's trains and the automobile in which plaintiff's intestate was riding; that plaintiff was a resident and citizen of the state of Missouri; that defendant railway company was a corporation of the state of Illinois; that four of the six individual defendants were citizens of Missouri, and were respectively superintendent, trainmaster, chief dispatcher, and night dispatcher of defendant railway company; that the other two individual defendants were the conductor and engineer, respectively, of the train of defendant railway company which caused the collision; that the accident was caused by certain acts of negligence, to wit, of all of the defendants in running the train without sounding the steam whistle at least 80 rods from the crossing, of all of the defendants, except the conductor and engineer, in not directing such signal to be given, of all of the defendants, except the conductor and engineer, in failing to order such signals to be given as would bear reasonable relation to the speed at which the train might approach the crossing, of all of the defendants in running the train at an excessive rate of speed, of all of the defendants, except the conductor and engineer, in failing to direct the running of the train at a speed which would bear a reasonable relation to the signals to be given, and of all of the defendants, except the conductor and engineer, in directing the train to be run at an excessive rate of speed; that, by reason of these joint and concurrent acts of negligence of defendants, the accident and death of plaintiff's intestate resulted.

April 26, 1924, and in due time, defendant railway company filed its petition and bond for removal to the United States District Court for the Western District of Missouri. In the petition it was alleged in substance that the defendants, the conductor and the engineer, were neither of them citizens of Missouri; that there was a separable controversy between the defendant railway company and plaintiff; that the only joint liability that could exist would be with the defendant engineer, Park, who was not served; that defendant conductor had nothing to do with the matters mentioned in the complaint, so far as the operation of the train was concerned, and in any event that he was a nonresident; that the joinder of the resident defendants was fraudulent and without foundation; that the acts of commission and omission alleged against the resident defendants were in no wise connected with the collision; that said resident defendants were joined with full knowledge by plaintiff of such facts and with the fraudulent purpose of preventing a removal.

The defendant conductor filed a similar petition and bond for removal.

The state circuit court, by its order of May 9, 1924, found that due notice of the petitions had been given, and that the bonds were sufficient and were approved by the court, but further found that the petitions should be denied; the reasons not being stated. May 20, 1924, defendant railway company caused a transcript of the record in the state court to be filed in the United States District Court for the Western District of Missouri, and notice thereof to be given to plaintiff. Answers by the several defendants were also filed.

About eleven months later, in April, 1925, plaintiff caused the action in the state court to be docketed for trial. No motion to remand from the United States District Court had been made. May 1, 1925, defendant railway company and the defendant conductor brought a suit in equity against plaintiff in the United States District Court, to which the law action had been removed, alleging in substance the foregoing facts, and that said plaintiff was threatening to proceed to trial in the state court. An injunction was prayed.

The court held that the petitions for removal presented issues of fact triable only in the federal court, and granted a temporary injunction against plaintiff, restraining him from proceeding in the state court. May 19, 1925, plaintiff filed in the United States District Court a motion to remand the law action to the state court. In his motion he expressly denied that there was a separable controversy, and expressly denied that there was a fraudulent joinder, and alleged that he "in due course of law, in good faith, elected to sue for a joint recovery, given him by the laws of...