Kansas City Suburban Belt Railway Company v. Andrew Herman
Decision Date | 03 November 1902 |
Docket Number | No. 321,321 |
Citation | 23 S.Ct. 24,187 U.S. 63,47 L.Ed. 76 |
Parties | KANSAS CITY SUBURBAN BELT RAILWAY COMPANY, Plff. in Err. , v. ANDREW HERMAN, a Minor, by His Next Friend, Martin Herman, and Union Terminal Railway Company |
Court | U.S. Supreme Court |
This was an action brought by Andrew Herman, a minor, by his next friend, in the court of common pleas of Wyandotte county, Kansas, September 18, 1897, against the Union Terminal Railway Company, a corporation of Kansas, and the Kansas City Suburban Belt Railway Company, a corporation of Missouri, to recover damages for injuries inflicted through their joint or concurrent negligence.
The belt railway company, October 18, 1897, filed a verified petition and bond for removal, in proper form, on the ground of a separable controversy; which petition alleged the controversy between plaintiff and petitioner to be distinct and separable from that between plaintiff and the Union Terminal Railway Company, on these grounds:
'1. Defendant the Union Terminal Railway Company owns, repairs, and maintains the railroad mentioned in plaintiff's petition. Your petitioner has no interest therein, except that it has leased same and pays certain yearly rental for the use of said tracks. All of the locomotives, engines, and cars running over said railroad are the property of your petitioner, or subject to its control. Defendant terminal company has no control over the operation of trains, and has no employees in train service. Defendant the Union Terminal Railway Company is responsible for the condition of the track, and your petitioner, and none other, for the acts and doings of all persons operating trains.
'2. The plaintiff herein has declared upon two distinct causes of action: First, for maintaining a defective switch; and, second, for negligent operation of a train of cars; the first of which, if true, is negligence chargeable against defendant the Union Terminal Railway Company, and the second, if true, is negligence chargeable against your petitioner.
'3. The train of cars mentioned in the petition was operated by your petitioner as averred. All of the parties in charge thereof were in your petitioner's employ, and none other.
The application for removal was heard February 5, 1898, and, upon argument, denied. The belt company thereupon filed a transcript of the record in the circuit court of the United States for the district of Kansas, and plaintiff made a motion to remand, which was sustained by the circuit court and the cause remanded to the state court 'on the ___ day of May, 1898.' Each of the two railroad companies defendant then filed its separate demurrer May 28, 1898, assigning as causes misjoinder of parties, and that plaintiff had not stated a cause of action, or facts sufficient to constitute a cause of action, against it. These demurrers were severally overruled, and the defendants severally answered. The cause came on for trial October 18, 1898, and on October 20, at the close of the evidence for plaintiff, each company filed its separate demurrer to the evidence on the ground that the same was not sufficient to establish a cause of action against it. The court sustained the demurrer of the terminal company, the Kansas corporation, and entered judgment in its favor, to which ruling of the court plaintiff at the time excepted; and the court overruled the demurrer of the belt company, the Missouri corporation, to which ruling the belt company excepted. Thereupon, the belt company filed a second verified petition for removal, which, after rehearsing the prior proceedings, thus continued:
'And the defendant further says that no evidence was offered or introduced by plaintiff, or attempt made, to show a cause of action against said Union Terminal Railway Company; that said Union Terminal Railway Company was joined with this defendant fraudulently, and for the sole purpose of preventing a removal of this cause to the circuit court of the United States, and with no purpose or intent of attempting to show any cause of action against it.
In response to this petition plaintiff filed, without objection, an affidavit which stated, among other things, that it was not true And it was further stated that counsel had relied on the production, on notice which had been given, of 'writings showing the relations existing between the two defendant companies in the operation and maintenance of their lines of railroad where the injuries were received,' and on an agreement with counsel for both of the defendants to admit the facts as to the relations between said companies, which, when it was too late to adduce other testimony, was not fulfilled.
The application for removal was overruled, and the belt company excepted, but took no bill of exceptions embodying the evidence to which the demurrers had been directed. The trial then proceeded, and resulted in a disagreement of the jury.
Plaintiff subsequently filed an amended petition reducing the damages claimed to less than $2,000, and the cause was again tried, and resulted in a verdict and judgment in favor of plaintiff for $1,500. The cause was carried to the Kansas court of appeals and the judgment affirmed, and thence to the supreme court of Kansas, with like result. Kansas City Suburban Belt R. Co. v. Herman, 68 Pac. 46.
A writ of error from this court was then allowed by the chief justice of Kansas, and citation issued to and acknowledged on behalf of Herman and the Union Terminal Railway Company. The case was submitted on motions to dismiss or affirm.
Gardiner Lathrop, Thomas R. Morrow, Samuel W. Moore, and John M. Fox for plaintiff in error.
Messrs. Silas Porter and W. B. Sutton for defendants in error.
The question is whether the state court erred in denying the second application for removal, and in view of our previous rulings in respect of such applications we think there was color for the motion to dismiss. And reference to two...
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