Dishon v. Cincinnati, N.O. & T.P. Ry. Co.

Decision Date30 November 1904
Docket Number1,316.
Citation133 F. 471
PartiesDISHON v. CINCINNATI, N.O. & T.P. RY. CO.
CourtU.S. Court of Appeals — Sixth Circuit

Rawlings & Voris, E. V. Puryear, and Robt. Harding, for plaintiff in error.

John Galvin and Maurice L. Galvin (Edward Colston, of counsel) for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit to recover damages for the wrongful death of the plaintiff's interstate, alleged to have been caused by the joint negligence of the Cincinnati, New Orleans & Texas Pacific Railway Company and George Coffman, one of its engineers, in operating a train of cars. Suit was brought in the circuit court of Jessamine county, Ky., it being alleged that the plaintiff and the defendant Coffman were citizens and residents of that state.

The negligence complained of is thus averred:

'Plaintiff avers that the defendant George Coffman is, and was on the 30th day of July, 1901, a citizen and resident of the state of Kentucky, and in the employment of the defendant Cincinnati, New Orleans & Texas Pacific Railway Company, as its engineer, and was on the said date engaged in operating and managing one of the defendant's trains of cars in the town of High Bridge, Jessamine county, Kentucky, for said Cincinnati, New Orleans & Texas Pacific Railway Company. Plaintiff avers that on the said date the defendant Cincinnati, New Orleans & Texas Pacific Railway Company was the owner of a section house at High Bridge, in said county, and leased or furnished to its section boss to use and occupy same, and to furnish food and lodging therein to employes of said defendant company, and suffered and permitted and licensed said employes boarding therein to go to and from said house across its railroad in front of said house, and upon said date his intestate, John Dishon, deceased, was in the employment of said defendant company as a section hand and a boarder at said section house; and plaintiff avers that on said 30th day of July 1901, after working hours, and when said Dishon was coming from said house, and crossing said railroad in front of said (house), the defendant Cincinnati, New Orleans & Texas Pacific Railway Company and the defendant George Coffman by their gross negligence and carelessness in operating and managing its train of cars, backed the same over and upon and against the plaintiff's intestate, thereby knocking him down and fatally injuring him, from which injuries inflicted by the joint gross negligence of said defendants said Dishon died shortly thereafter, and, by reason of the killing of said Dishon as aforesaid by said defendants, said Dishon and his estate had been damaged in the sum of thirty thousand dollars ($30,000), and plaintiff is entitled to recover said sum aforesaid in damages.'

The petition was filed on November 14, 1901, and summons issued. The return on the summons issued to Jessamine county, made December 12, 1901, shows that the railway company was served November 29, 1901, and George Coffman was not found. The return on the summons issued to Kenton county, made November 27, 1901, shows that George Coffman was not found. No other returns appear in the record. On March 3, 1902, Coffman not yet having been served, and the day having been reached when the railway company was required to make defense, it filed a petition, with bond, for the removal of the case to the United States Circuit Court. This petition, after stating the amount sued for, which exceeded the jurisdictional sum, and that the railway company was a citizen of Ohio, and the plaintiff a citizen of Kentucky, alleged:

'Your petitioner further says that in this suit plaintiff has fraudulently, wrongfully, improperly, and illegally joined as codefendant one George Coffman, who is alleged by plaintiff in his petition to be a citizen and resident of the state of Kentucky; and your petitioner says that George Coffman was fraudulently, wrongfully, improperly, and illegally joined as a codefendant in this suit because of the alleged fact, if it is a fact, that said George Coffman is a citizen and resident of the state of Kentucky, for the sole purpose of defeating the jurisdiction of the United States court. Your petitioner says that it denies that the said George Coffman is a citizen and resident of the state of Kentucky, and says that George Coffman has never been served with summons herein, and that it is not the purpose or intent of the plaintiff to prosecute the action in good faith against the said George Coffman, but that the said George Coffman was made a party defendant herein for the sole purpose and reason of attempting to defeat the removal of this cause to the Circuit Court of the United States, and to defeat the jurisdiction of the said Circuit Court of the United States; and your petitioner further says that the said George Coffman did not in any manner or degree contribute to the death or injury of said plaintiff's decedent through his own negligence, or through any joint negligence with the petitioner. Your petitioner further says that it is the only defendant in court in this action, and that said plaintiff at the time of filing his said petition well knew that the said George Coffman was not guilty with the petitioner of any joint negligence, and that said George Coffman is a sham defendant, and is so made a defendant for the sole and only purpose of fraudulently, improperly, and illegally defeating the removal of this case to the United States court, and defeating the jurisdiction of the United States court in this cause as aforesaid.'

This petition was verified by the affidavit of the general manager of the railway company. No answer to it was filed, nor in any other way was issue joined upon its averments. The case being removed to the United States court, there was a motion to remand, which was overruled. The case came on for trial. Coffman had not been served with summons, and no evidence whatever was introduced connecting him in any manner with the transaction complained of. After the testimony was all in, a motion to direct a verdict for the defendant was sustained, and the case comes here on two assignments of error-- first, in overruling the motion to remand; and, second, in giving the peremptory instructions.

1. While there is the broad averment that both the railway company and its engineer, Coffman, were guilty of 'joint gross negligence,' the only act charged to support this was the negligent backing of the train of cars against plaintiff's intestate while he was crossing the track under sufferance or license from the railway company. The only act complained of, therefore, was that of the engineer, and, because of it, negligence was imputed to the railway company. We are not satisfied that under the ruling in C. & O. Ry. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121, such an act constitutes joint negligence, for which both the railway company and its engineer may in one action be held liable. Warax v. C., N.O. & T.P. Ry. Co. (C.C.) 72 F. 637; Hukill v. Maysville & B.S.R. Co. (C.C.) 72 F. 745; Helms v. N.P.R. Co. (C.C.) 120 F. 389; Davenport v. Southern Ry. Co. (C.C.) 124 F. 983; Gustafson v. Chicago, R.I. & P. Ry. Co. (C.C.) 128 F. 85; Shaffer v. Union Brick Co. (C.C.) 128 F. 97; and American Bridge Co. v. Hunt (C.C.A.) 130 F. 302. But as we have certified the question to the Supreme Court in the case of Alabama Great Southern Railway Co. v. H. C. Thompson, Administrator, recently before us, we refrain from discussing it now.

2. We think the court was right in refusing to remand the case to the state court. At the time the petition for removal was filed, nearly three months had elapsed since summons issued for Coffman had been returned, 'Not found.' No efforts were being made to bring Coffman into court and prosecute the action against him. The petition for removal, which was verified, denied that Coffman was a citizen of Kentucky, averred that he had not been served with summons, and alleged that it was not the purpose of the plaintiff to prosecute the action against him, but that he had been made a party defendant for the sole purpose of preventing the removal of the case to the United States court. It further averred that Coffman 'did not in any manner or degree contribute to the death or injury of said plaintiff's decedent through his own negligence, or through any joint negligence with this petitioner'; that the plaintiff knew this when he filed his petition; and that Coffman was a sham defendant-- made so for the sole purpose of fraudulently defeating the jurisdiction of the United States court.

Conceding that the intent with which a party is made defendant is not material, where a cause of action exists, and the defendant is brought into court in good faith, with the intention of keeping him there and prosecuting the case against him to a conclusion, it is settled that where a person is made a defendant for the sole purpose of preventing the removal of the case to the United States court, and without any intention of prosecuting the case against him, the court will consider him a merely nominal or sham defendant-- made so for a fraudulent purpose-- whose presence in the case can be ignored.

The averments of the petition for removal were not simply denials of the allegations of the plaintiff's petition. They were affirmative in form and substance. They charged a case of fraudulent joinder. If, as they alleged, Coffman did not in any sense contribute to the death of the plaintiff's intestate-- if the plaintiff knew this fact, and, although Coffman was not a citizen of Kentucky, made him a party defendant for the sole purpose of defeating the removal of the case to the United States court-- a case for removal regardless...

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