Gustafson v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 08 February 1904
• Docket Number: 2,813.
• Citation: 128 F. 85
• Court: U.S. District Court — Western District of Missouri
• Parties: GUSTAFSON v. CHICAGO, R.I. & P. RY. CO. et al.

128 F. 85

GUSTAFSON v. CHICAGO, R.I. & P. RY. CO. et al.

No. 2,813.

United States Circuit Court, W.D. Missouri, Western Division.

February 8, 1904

Mosman & Ryan and Amos Townsend, for plaintiff.

Frank P. Sebree, for defendants.

PHILIPS District Judge.

This controversy arises on a motion to remand. combined with an answer in the nature of a plea in abatement. This suit was instituted in the state circuit court of Jackson county, Mo and was removed therefrom to this court on the petition of the defendant the Chicago, Rock Island & Pacific Railway Company on the ground that the cause of action presents a separable controversy; the said railroad company being a nonresident citizen of the state of Missouri. The petition for removal further alleged that the plaintiff had no reasonable ground upon which to base a cause of action for recovery against the defendant Hanna, and that, according to the petition, the defendant railway company was responsible alone for the cause of action. The petition then alleges that the said Hanna was joined as a defendant for the sole and fraudulent purpose of preventing the defendant from removing the action from the state court, and for the sole purpose of fraudulently defeating the jurisdiction of said United States court.

After the hearing of said motion and the issue on removal, the defendant railway company, by leave of court, was permitted to amend the fourth paragraph of the petition for removal which amendment alleges, as did the original petition, that the cause of action against the defendants is separable, and omits the statement in the original petition that it discloses no ground of recovery against the defendant Hanna and contains the same allegation, in effect, that said Hanna was joined as a codefendant for the fraudulent purpose of defeating the removal of this action from the state court by the nonresident defendant, and to defeat the jurisdiction of this court.

This question of the right to amend the petition for removal in this court has recently been discussed and determined by Mr. Justice Brewer, of the Supreme Court, in Kinney v. Columbia Savings & Loan Association, 24 Sup.Ct. 30, 48 L.Ed.-- . It is decisive as to the right to make the amendment in question.

Indeed, the amendment to the petition for removal in this case, in legal effect, is little different from the original petition. While the original petition for removal averred that the petition did not show any grounds of recovery as against Samuel Hanna, and did show one against the defendant company, that was not the statement of a fact, but was a mere legal conclusion, drawn by the remover from the allegations of the petition. If it was a false conclusion in point of law, its omission from the amended petition is quite immaterial. The original petition contained the essential averment that the cause of action as to the defendant railway company was separable from that against the defendant Hanna, and that Hanna, the local defendant, was joined as a codefendant for the fraudulent purpose of preventing the nonresident defendant from removing the case into this court. The issue, therefore, on the motion to remand, is as to whether or not the petition on its face shows, as matter of law, that the cause of action against the defendants is joined as a codefendant for the sole purpose of preventing the defendant railway company from removing the cause into this court presents an issue of fact, to be determined by the court on the plea.

It is to be conceded to plaintiff's contention that if, as a matter of law, he has a joint cause of action against the defendants, he had a right to sue them jointly, no matter if he did entertain the desire and purpose to prevent the defendant railway company from removing the case. On the other hand, if the plaintiff in the petition has alleged any fact intended to show a joint cause of action against both defendants, which the plaintiff at the time knew, or had reason to believe, was not true, that fact, under the allegations of the petition for removal, can be inquired into and determined on issue raised on the plea to the petition for removal. Union Terminal R. Co. v. Chicago, B. & Q.R.R. Co. (C.C.) 119 F. 209.

I will not attempt a resume of the now familiar decision known as the 'Dixon Case,' reported in 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121, as nothing determined by me here conflicts with what was really in contest in that case. The critical and clear analysis given of the Dixon Case by Judge Amidon in Helms v. Northern Pac. Ry. Co. et. al. (C.C.) 120 F. 389, leaves little need of further exposition.

Since the publication of the decision in the Dixon Case the practice of attorneys in personal injury cases, in joining a local resident defendant, like an engineer, brakeman, or other employee, with the nonresident railroad company, to prevent the removal by the railroad company from the state to the United States court, is becoming so universal as to invite the courts to closest scrutiny to see whether, in fact and law, there actually exists a joint cause of action, or merely a simulated one. While the policy of the judiciary act of 1887-88 (Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901,p. 508)) was rather to restrict than enlarge the jurisdiction of United States courts, it is just as applicable to-day as it ever was what Judge Lurton in Arrowsmith v. Nashville & D.R. Co. (C.C.) 57 F. 169, quotes from the language of Mr. Justice Miller, that:

'It would be a very dangerous doctrine-- one utterly destructive of the right which a man has to go into the federal courts on account of his citizenship--if the plaintiff in the case, in instituting his suit, can, without any right or reason or just cause, join persons who have not the requisite citizenship, and thereby destroy the rights of parties in federal courts. We must therefore be astute not to permit devices to become successful which are used for the very purpose of destroying that right.'

If this growing practice be further extended, under a latitudinarian construction, beyond what was really decided in the Dixon Case, and those in consonance therewith, the practical result is to be a denial to nonresident corporations of the right of removal from the local to the federal courts. The persistent insistence of attorneys for such plaintiffs is that just in so much as, by mere allegation in the petition, a joint cause of action can be apparently stated, regardless of the motive of the pleader and the underlying facts, they may effectually cut off even a technical analysis of the petition, to see whether in point of law a joint cause of action is stated, and any resort to evidence in pais on the issue of removal and remand. But the right and the duty of the court are well recognized to examine the petition by its 'four corners,' to see if a joint cause of action is stated; for, no matter how designedly and repetitiously the pleader may assert that 'the defendants' did so and so, such asservations will be treated as a mere brutum fulmen, if, taking the facts as a whole stated in the petition, they disclose, in contemplation of law, a separable cause of action against the defendants. As held by the Supreme Court of this state, the allegation of negligence on the part of the defendants in general terms is treated as mere surplusage-- words without meaning-- when preceded or followed by specific allegations of specific acts of negligence. Fuchs v. City of St. Louis, 167 Mo. 620, 640, 67 S.W. 610, 57 L.R.A. 136; Chitty v. Railway, 148 Mo. 64-75, 49 S.W. 868; McCarty v. Hotel Co., 144 Mo. 397, 402, 46 S.W. 172.

And as already stated, even where the petition on its face alleges a joint cause of action, or some joint acts of the defendants, the nonresident defendant may challenge the truth of it in his petition for removal by alleging that it was inserted for the purpose of preventing the exercise of the right of removal by the nonresident defendant, and this issue of fact is to be determined by the United States court. And if any material fact alleged in the petition, for the purpose of showing a joint cause of action, be found to be untrue in fact, and such fact was known to the pleader, or could have been known to him by the exercise of that inquiry which the law exacts, the court is warranted in drawing the conclusion, as matter of law, that the purpose was to prevent the right of removal by the nonresident defendant. Union Terminal Railway Co. v. Chicago, B. & Q.R.R. Co. (C.C.) 119 Fed., loc. cit. 213.

An analysis of the plaintiff's petition presents a strange medley of facts self-contradictory and pregnant with legal impossibilities. It discloses in the first paragraph the fact that the defendant railway company, under agreement, was running its engine and train of cars over the railroad of the Hannibal & St. Joseph Railroad Company between Cameron Junction, in Clinton county, Mo., by way of Harlem station to Kansas City, Mo.; that at said Harlem there are railroad switch yards, consisting of a large number of side tracks parallel with the main line track, used for switching cars and making up trains, where a large volume of business is done upon said side tracks, and that frequently the main track is used and occupied by switching crews; that at the time of the plaintiff's injury he was a locomotive engineer, in the employ of said Hannibal & St. Joseph Railroad Company, managing a switch engine, with a switching crew in the yard; that he had his engine, with a large number of freight cars attached, on the main track of said railway; and while so engaged 'the defendants, carelessly, negligently, and recklessly, and with great force and violence, ran a passenger train into, upon, and against his said...