Golden v. Northern P. Ry. Co.

• Decision Date: 22 October 1909
• Parties: GOLDEN v. NORTHERN PAC. RY. CO. et al.
• Court: Montana Supreme Court

104 P. 549

39 Mont. 435

GOLDEN v. NORTHERN PAC. RY. CO. et al.

Supreme Court of Montana

October 22, 1909

Appeal from District Court, Missoula County; Henry L. Myers, Judge.

Action by Michael Golden against the Northern Pacific Railway Company and another. From a judgment for plaintiff and an order denying a motion for new trial, defendant named appeals. Affirmed.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant.

Hall & Patterson, for respondent.

BRANTLY C.J.

This action was instituted by plaintiff to recover damages for a personal injury to himself, which he alleges was caused by the defendants by willful, wanton, and reckless negligence in ejecting him from one of the freight trains of the defendant railway company. It is alleged that the defendant McCarthy was on the morning of June 23, 1906, in the employ of the railway company, and that he by force and violence ejected the plaintiff from one of its freight trains while it was in rapid motion, and thus caused him to fall under the wheels, whereby he suffered the loss of his right leg. The issues tried arose upon the denials in the answer of the defendant railway company and its plea of contributory negligence on the part of the plaintiff.

The plaintiff is a citizen of Montana, as was also the defendant McCarthy, at the time the injury occurred and at the time the action was brought. This defendant was then in the employ of the railway company as a brakeman. The railway company is a citizen of the state of Wisconsin. McCarthy was never served with summons, nor did he at any time by voluntary appearance submit himself to the jurisdiction of the court, though he was present during the trial, and testified in behalf of the railway company. On the second day of the trial, and after it had proceeded to the point when counsel for plaintiff were about to conclude the introduction of plaintiff's evidence in chief, counsel for the railway company stated to the court that defendant McCarthy was present in court and could be served with summons, and demanded of counsel for plaintiff to be informed whether it was their intention to serve him and have the cause proceed against him also. Thereupon a colloquy took place between the trial judge and counsel. Counsel for the railway company insisted that this defendant had a right to have the cause proceed against both defendants jointly, since they were charged jointly in the complaint, and that a refusal by counsel for plaintiff to have summons served and to have the cause so proceed would demonstrate that the action had been brought against the defendants jointly in bad faith, and for the sole purpose of preventing the removal of the cause to the Circuit Court of the United States as a separate controversy between citizens of different states. Objection was made to further proceedings in the cause until service of summons had been made and this defendant properly impleaded. Counsel for plaintiff stated that they had already caused alias summons to be issued and that they intended to have service of it made, but intended to do so at their own pleasure, and insisted that plaintiff was entitled to have the trial proceed against the defendant railway company notwithstanding defendant McCarthy had not been served. The judge stated that the court had no power to compel service of summons, and that it required more than a mere objection to stay proceedings and thereupon overruled the objection. Counsel for the railway company then presented a petition asking for a removal of the cause to the Circuit Court of the United States for the District of Montana, accompanied by a good and sufficient bond such as is required by the federal statute. After stating the diverse citizenship of the plaintiff and the railway company and the character of the action, it alleged, in substance, that the allegations of joint wrong by the railway company and defendant McCarthy set forth in the complaint were false in fact and made in bad faith to prevent removal to the federal court; that no service of summons had theretofore been made upon the defendant McCarthy, the failure to make it having been attributed by plaintiff to the fact that McCarthy had been absent from the state; that though McCarthy had been present in court since the trial began, nearly two days, and this fact had been known to plaintiff, yet plaintiff had refused to serve him with summons; that because of the allegations in the complaint of joint wrong by defendants, and because of the reasons assigned by plaintiff for failure to serve McCarthy with summons and put him upon his defense with the railway company, it had theretofore been impossible and improper to petition for a removal of the cause; that it then appeared for the first time that McCarthy had been made a party defendant fraudulently and in bad faith in order to prevent a removal of the cause; that, in fact, the action had been brought against the railway company alone; that it presented a controversy wholly between citizens of different states, to wit, between the plaintiff and the railway company, and that it was therefore removable, under the federal statute, to the Circuit Court of the United States. Upon objection by counsel for plaintiff that the petition was presented too late, the court directed the trial to proceed, thus retaining jurisdiction of the cause over the protest and objection of the railway company. The plaintiff had verdict for $5,000. From the judgment entered thereon and from an order denying its motion for a new trial, the defendant railway company has appealed. The validity of the judgment is assailed on the grounds that the court erred in refusing to surrender jurisdiction of the cause upon the filing of the petition for removal, in its rulings upon certain questions of evidence during the trial, and in the instructions submitted to the jury. The contention is also made that the evidence is insufficient to sustain the verdict.

1. As to the propriety of the first contention there can be no doubt, if the petition was sufficient and was filed in time for there is no question but that the bond was sufficient. In addition to the contention that the petition was filed too late, it is also urged, with some reason, by counsel for plaintiff, that it contains no sufficient allegation of fact, but conclusions of law only, and for this reason was properly disregarded by the trial court. For present purposes we shall assume that the statements of fact contained in it, aided by those appearing in the record, are sufficient to warrant a removal, and consider the question only whether it was filed in time; for it cannot be controverted that the action has now assumed the aspect of a controversy between citizens of different states, and should have been removed upon timely application for that purpose. In determining this question, the contents of the petition must be considered in connection with the proceedings in the case prior to its presentation. We must presume that the trial was taken up in due course, upon the day theretofore appointed, and upon the announcement of both parties that they were ready for trial. The announcement by the plaintiff that he was ready for trial, defendant McCarthy not being then subject to the jurisdiction of the court so as to be put upon his defense, a fact known to counsel for the railway company, amounted to notice by the plaintiff that he had determined to proceed against the railway company alone. This was equivalent to a complete severance of the action as to the railway company, and, so far as it is concerned, converted it into a separate action against this defendant as effectively as if it had originally been made the sole defendant. Berry v. St. Louis & S. F. R. R. Co. (C. C.) 118 F. 911; Yarde v. Baltimore & O. R. Co. (C. C.) 57 F. 913; Northern Pacific R. R. Co. v. Austin, 135 U.S. 315, 10 S.Ct. 758, 34 L.Ed. 218; Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Kansas City, Ft. Scott & M. R. Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963. Thus the action became at once removable on the ground of diverse citizenship without regard to the question whether the joinder was originally made in bad faith for the purpose of preventing removal. This was declared to be the rule in Berry v. St. Louis & S. F. R. R. Co., supra, which was an action by plaintiff for damages for the death of her husband against two railway companies, one of which was a resident of the same state with the plaintiff, but had never been served with summons. The plaintiff had the cause set down for trial upon issues joined by the nonresident defendant, and refused to say whether she intended to dismiss or discontinue the cause as to the other defendant. The cause having been removed to the circuit court, a motion was made to remand it to the state court. In disposing of the motion, after pointing out that under the state statute the action was one that could be made joint or several, at the option of plaintiff, the court said: "In the case in hand the plaintiff abandoned her right to a joint judgment by demanding a trial as to one defendant in the absence of service upon the other. The course of trial and the character of the verdict and judgment in a joint action render any other conclusion impossible." So in this state the statute authorizes the rendition of a judgment against one or more of several defendants, leaving the action to proceed against the others whenever a several judgment is proper. Rev. Codes, § 6712. It cannot be questioned but that the plaintiff in cases of tort like the one at bar has the option to proceed against any one or all of the defendants by whose concurrent action the wrong was done. Cooley on Torts (3d Ed.) pp. 244, 252. The same...