Evans v. Sioux City Service Co.
| Decision Date | 18 August 1913 |
| Docket Number | Law.,29 |
| Citation | 206 F. 841 |
| Parties | EVANS v. SIOUX CITY SERVICE CO. et al. |
| Court | U.S. District Court — Northern District of Iowa |
E. M Corbett and Edwin J. Stason, both of Sioux City, Iowa, for plaintiff.
J. L Kennedy and J. P. Shoup, both of Sioux City, Iowa, for defendants.
This action was commenced in the state court by the plaintiff, as administratrix of the estate of Lewis Frank Evans, to recover damages of the defendants for their alleged joint negligence in causing the death of plaintiff's intestate. The Sioux City Service Company, a New Jersey corporation, in due time removed the cause to this court, upon the ground of a separable controversy between it and the plaintiff, and the diverse citizenship of said parties, and that the defendant Thompson, a citizen of Iowa, of which state the plaintiff is also a citizen, was fraudulently joined as a defendant with it to prevent it from removing the cause to this court. The plaintiff moves to remand.
The original petition of the plaintiff alleges that the defendant Hay was motorman, and defendant Thompson the conductor in charge, of a street car in Sioux City, Iowa, operated by the defendant Sioux City Service Company upon its tracks in that city, and that Thompson as such conductor, and said Sioux City Service Company jointly operated said car at a negligently high and dangerous rate of speed, without giving any warning of the approach of said car, and by such joint negligence and wrongful acts caused the death of plaintiff's intestate as he was about to board the car as a passenger. No notice or summons has been served upon the defendant Hay, and he has not appeared to the action. He will not, therefore, be considered as a party to the action.
The original petition plainly enough alleges the joint and concurring negligence of the Sioux City Service Company and Thompson as the conductor in charge of the car which caused the death of plaintiff's intestate. By an amendment to the petition the plaintiff added to the paragraph so charging such joint negligence the following:
'And in negligently, carelessly, and illegally operating the said car without maintaining on the front end thereof a properly constructed fender, one so constructed and attached as * * * to fully protect persons from injury who are on or near the street railway tracks, over which defendants were operating said car, and in violation of an ordinance of the city of Sioux City requiring fenders for such cars.'
This averment so added to the original paragraph of the petition charges both Thompson and the Sioux City Service Company jointly with negligence in operating the car at a high and dangerous rate of speed, and without a fender, as required by the Sioux City ordinance. The ordinance is not attached as a part of the plaintiff petition.
The petition for removal, filed after the amendment to the petition was made, alleges specifically and with much detail that the alleged joint cause of action against defendant Thompson is false and fictitious, known by the plaintiff to be so, and that it was made without any intention of proving the same, and for the express purpose of preventing the corporate defendant from removing the cause to this court. These allegations of the petition for removal are denied by the plaintiff, and the joint negligence of both the defendant Thompson and the corporate defendant, as alleged in the original petition and amendment thereto, are reiterated, and alleged to have been made in good faith. No proof was taken or submitted by the removing d...
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Robinson v. Attapulgus Clay Co
...number of physical precedents may be cited, where a petition for removal was granted to a renewed or recommenced suit. Evans v. Sioux City Service Co. (D.C.) 206 F. 841; Warax v. Cincinnati, etc., R. Co. (C.C.) 72 F. 637; Johnson v. Blackwood Lumber Co., 189 N.C. 81, 126 S.E. 165; Chesapeak......
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Robinson v. Attapulgus Clay Co.
...number of physical precedents may be cited, where a petition for removal was granted to a renewed or recommenced suit. Evans v. Sioux City Service Co. (D.C.) 206 F. 841; Warax v. Cincinnati, etc., R. Co. (C.C.) 72 F. Johnson v. Blackwood Lumber Co., 189 N.C. 81, 126 S.E. 165; Chesapeake, O.......
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Henderlong v. Standard Oil Co.
...of the action to the federal court was denied on the ground that the pleadings showed joint and concurrent negligence: Evans v. Sioux City Co. (D. C.) 206 F. 841, where it was alleged a street car company failed to equip the car with a proper fender, and injury resulted therefrom. In Atlant......