Fergason v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 11 October 1894
• Citation: 63 F. 177
• Parties: FERGASON v. CHICAGO, M. & ST. P. RY. CO. et al.
• Court: U.S. District Court — Northern District of Iowa

63 F. 177

FERGASON v. CHICAGO, M. & ST. P. RY. CO. et al.

United States Circuit Court, N.D. Iowa, Western Division.

October 11, 1894

Argo McDuffie & Argo, for plaintiff.

Taylor Shull & Farnsworth, for defendants.

SHIRAS District Judge.

The questions arising upon the motion to remand this case to the state court, where it originated, grow out of the following facts: The plaintiff, George W. Fergason, on the 21st day of December, 1892, was in the employ of the Chicago, Milwaukee &amp St. Paul Railway Company, engaged in the business of switching in the yards of the company, at Sioux City, Iowa. On the day named he was run over by a switch engine in the yard of the company, resulting in the loss of his leg. To recover damages for this injury he brought suit in the district court of Woodbury county, Iowa, against the railway company, which action was removed into this court by the railway company, and on the 1st day of June, 1894, the case came on for trial before the court and jury. At the conclusion of the plaintiff's testimony the court intimated that his evidence showed that he himself was responsible for the accident, and thereupon the plaintiff dismissed the action without prejudice, and then instituted the present suit in the district court of Woodbury county naming as defendants therein the railway company, John Smith, the engineer in charge of the engine, and D. W. Pollard, the yard master. The railway company thereupon filed a petition for the removal of the case into this court, upon the ground that it was a corporation created under the laws of the state of Wisconsin; that the plaintiff was a citizen of Iowa; that the suit was for $20,000; and that it involved a separable controversy existing between the plaintiff and the railway company, and hence was removable, even though the defendants Smith and Pollard were citizens of Iowa, and therefore cocitizens with plaintiff. The state court granted the order of removal, and, the transcript having been filed in this court, the plaintiff moves to remand on the ground that this court is without jurisdiction.

The question to be determined is whether the petition sets forth a cause of action existing solely between the plaintiff and the railway company, and which is separable from the cause of action alleged against the defendants Smith and Pollard, so as to bring it within the third clause of section 2 of the act of August 13, 1888, which enacts that 'when in any suit, mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. ' Under this clause of the statute regard is had solely to the cause or causes of action declared upon and set forth by the plaintiff in his petition or declaration. By the rulings of the supreme court in Ayres v. Wiswall, 112 U.S. 187, 5 Sup.Ct. 90; Railroad Co. v. Ide, 114 U.S. 52, 5 Sup.Ct. 735; Pirie v. Tvedt, 115 U.S. 41, 5 Sup.Ct. 1034, 1161; Starin v. City of New York, 115 U.S. 248, 6 Sup.Ct. 28; Sloane v. Anderson, 117 U.S. 275, 6 Sup.Ct. 730; Safe-Deposit Co. v. Huntington, 117 U.S. 280, 6 Sup.Ct. 733; Plymouth Consol. Gold Min. Co. v. Amador & S. Canal Co., 118 U.S. 264, 6 Sup.Ct. 1034,-- and other cases based thereon, it is well settled that the question of the existence of a separable, removable controversy is to be determined upon consideration of the allegations of the petition; that the defendants, by separate answers or defenses, cannot create a separable controversy, within the meaning of the statute, out of a cause of action upon which the plaintiff has declared jointly; and therefore the true query is whether the case as made and set forth in the petition or declaration of the plaintiff is or is not separable into parts, 'so that in one of the parts a controversy will be presented with citizens of one or more states on one side and citizens of different states on the other, which can be fully determined without the presence of the other parties to the suit as it has been begun. ' Ayres v....