Dougherty v. Yazoo & M.V.R. Co.
Decision Date | 31 March 1903 |
Docket Number | 1,149. |
Parties | DOUGHERTY v. YAZOO & M.V.R. CO. et al. |
Court | U.S. Court of Appeals — Fifth Circuit |
L. W Magruder and J. C. Bryson, for plaintiff in error.
Edward Mayes, J. B. Harris, and Thomas A. McWillie, for defendants in error.
In Error to the Circuit Court of the United States for the Southern District of Mississippi.
This action was brought by John C. Dougherty, the plaintiff in error, in the state circuit court of Jefferson county, Miss against the Yazoo & Mississippi Valley Railroad Company and the Pullman Palace Car Company, jointly, for personal injuries sustained by him by being thrown from a rapidly moving train of the defendant railroad company, through the alleged joint negligence of the defendants and their servants. In due time the Pullman Company presented its petition to the state court for removal of the suit to the United States Circuit Court, alleging that 'this is a suit wherein the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars and in which there is a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid; that this is a suit in which there is a controversy which is wholly between citizens of different states, and which can be fully determined as between them, and petitioner is one of the defendants actually interested in said controversy. ' Thereupon the suit was removed to the Circuit Court. The plaintiff moved to remand on the grounds, first, that the suit was not removable to the Circuit Court; second, that this suit, embracing the same cause of action, was first instituted by the plaintiff against the defendants in the Circuit Court of the United States for the Eastern District of Louisiana, and was dismissed by that court for the want of jurisdiction, based upon citizenship, on the motion of the defendant Pullman Palace Car Company, on the . . . day of . . ., 1899. This motion, having been duly heard, was refused by the Circuit Court. The learned judge who sat in the Circuit Court, in passing on this motion, announced the following views:
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The Circuit Court having thus retained the case, such proceedings were thereinafter had as resulted in a verdict and judgment for the defendants, to review and reverse which the plaintiff sued out this writ of error.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
McCORMICK Circuit Judge (after stating the facts as above).
The first error assigned is the overruling and denying plaintiff's motion to remand this suit. Counsel for the Pullman Company urge that the jurisdiction of the Circuit Court in this case can be safely rested on the diversity of citizenship alone, and that the petition for removal need not have contained the additional averment that there was a separable controversy. In reference, however, to the averment of a separable controversy in the suit, they urge that the sufficiency of the roadbed and the proper handling of the train are matters of defense with which the Pullman Company has no concern, and, moreover, that, not being a common carrier, it is under no duty to exercise the same high degree of care required of the railroad company; that the complaint involves quite different lines of defense on the part of the two defendants.
As to these contentions:
Counsel for the plaintiff in error relies with well-placed confidence on the cases of Chicago, Rock Island & Pacific Railway Company v. Martin, 178 U.S. 245, 20 Sup.Ct. 854, 44 L.Ed. 1055, and Chesapeake & Ohio Railway Company v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121. In the first of these cases it appears that Lissa Martin, ad administratrix of William Martin, deceased, brought her action for damages against the Chicago, Rock Island & Pacific Railway Company, and against Clark and others, receivers of the Union Pacific Railway Company, in the state court in Kansas. The receivers presented their petition and bond, praying for removal of the cause to the United States Circuit Court on the ground that the case arose under the Constitution, and laws of the United States. Their application was overruled. The case was tried. Judgment was rendered in favor of the plaintiff against all of the defendants. This judgment was affirmed on writ of error by the Supreme Court of Kansas. 59 Kan. 437, 53 P. 461. The refusal of the state court to remove the cause to the Circuit Court on the application of the receivers was relied on as error throughout the proceedings; and the Supreme Court of Kansas held that the application for removal was properly denied, because all of the defendants were charged with jointly causing the death of plaintiff's intestate, and all did not join in the petition for removal. The case was brought by writ of error to the United States Supreme Court. In delivering the opinion of that court, the Chief Justice, after reciting the language of the act of August 13, 1888, 25 Stat. 433, c. 866 (U.S. Comp. St. 1901, p. 509), bearing upon the subject, says:
In the concluding paragraph of the opinion, the Chief Justice says:
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