Highway Const. Co. v. McClelland

• Decision Date: 05 June 1926
• Docket Number: No. 7179.,7179.
• Parties: HIGHWAY CONST. CO. et al. v. McCLELLAND.
• Court: U.S. Court of Appeals — Eighth Circuit

14 F.2d 406 (1926)

HIGHWAY CONST. CO. et al. v. McCLELLAND.^*

No. 7179.

Circuit Court of Appeals, Eighth Circuit.

June 5, 1926.

Inghram D. Hook, of Kansas City, Mo., for plaintiffs in error.

Roger S. Miller and Scott J. Miller, both of Chillicothe, Mo., for defendant in error.

Before STONE, KENYON, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

Plaintiffs in error, defendants below, by this writ of error seek to review a judgment entered after verdict in the District Court for the Western District of Missouri. In the case of M. C. & L. M. Ry. v. Swan, 111 U. S. 379, 382, 4 S. Ct. 510, 511 (28 L. Ed. 462), the Supreme Court laid down the following rule:

"On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."

See C., B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 419, 31 S. Ct. 460, 55 L. Ed. 521; B. & O. R. R. v. City of Parkersburg, 268 U. S. 35, 45 S. Ct. 382, 69 L. Ed. 834.

With this rule in mind, and because the record in the case at bar, at the time of argument, did not contain the removal papers, nor show facts establishing jurisdiction in the trial court, we entered an order allowing counsel on either side to suggest a diminution of the record, and bring up the removal papers and such other parts of the record as might show jurisdiction. Such a course has been followed.

From the record, so completed, it appears that the action was brought by Alice McClelland, widow of George McClelland, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendants, who were engaged in highway construction in Caldwell county, Mo. Deceased was an employee of the construction company. The action was commenced in the state court of Caldwell county, Mo. The petition named as defendants the Highway Construction Company, George Stewart, and ______ Dunn. It alleged negligence of the company as to the lights and chains on the truck in which McClelland was being carried home from the place of work on the highway at the time of the accident; negligence on the part of Dunn, who was alleged to have been the driver of the truck in which McClelland was riding; negligence on the part of Stewart, superintendent of defendant company, and under whose direction the truck was driven. In due time the defendant company filed its petition and bond for removal to the federal court. The petition alleged, among other things, that plaintiff was a resident and citizen of Missouri; that defendant company was a citizen of Oklahoma; that defendant Stewart was a citizen of Kansas; that defendant Dunn was a citizen of Missouri. It alleged further:

"That the cause of action that the plaintiff herein has brought against your petitioner, on the one hand, and George Stewart and ______ Dunn, on the other hand, are separable controversies, in that the only charge of negligence attributed to your petitioner in plaintiff's petition is that your petitioner permitted its truck to become in disrepair, and that your petitioner's truck at the time and place of the alleged accident was driven under the direction of the defendant George Stewart; that there is no charge of negligence against defendant George Stewart, except negligence as a vice principal of your petitioner; that there is no cause of action stated against defendant Dunn in plaintiff's petition, and defendant Dunn is only charged with operation of the truck as an individual, and is not charged with operation of the truck as the vice principal of your petitioner; that the charges of negligence against your petitioner are acts of omission, while the acts of negligence against the other defendants are acts of commission; that there is no charge in the plaintiff's petition that there was any concerted negligence on the part of the defendants in causing the death of the deceased; that said accident resulted from the negligent construction and condition of a bridge, over which your petitioner had no control.

"Your petitioner further states that the joining of the defendant ______ Dunn with your petitioner was for the fraudulent and sole purpose of defeating the jurisdiction of the United States District Court, and preventing the removal of this cause to said court, in that the accident was caused by reason of the faulty construction and condition of a bridge which collapsed, in that there is no charge that any negligence of your petitioner concurred with any negligence of defendant Dunn in causing the injuries to the deceased, in that your petitioner is only charged with acts of omission, while defendant Dunn is charged with acts of commission, in that there is no cause of action stated in plaintiff's petition against defendant Dunn, and because defendant Dunn was not driving defendant's truck at said time and place."

The petition was verified on information and belief by the attorney for defendant company. An order for...