Key v. West Kentucky Coal Co.

• Decision Date: 02 December 1916
• Citation: 237 F. 258
• Parties: KEY et al. v. WEST KENTUCKY COAL CO. et al.
• Court: U.S. District Court — Western District of Kentucky

237 F. 258

KEY et al. v. WEST KENTUCKY COAL CO. et al.

United States District Court, W.D. Kentucky.

December 2, 1916

C. J Waddill, of Madisonville, Ky., for plaintiffs.

W. J Cox, of Madisonville, Ky., and W. P. Sandidge, of Owensboro Ky., for defendants.

EVANS District Judge.

This action was commenced in the Webster circuit court on June 16 1915, on a claim for $30,000 damages for personal injuries to an infant employe. The plaintiffs and the defendant Elswick are citizens of Kentucky. The West Kentucky Coal Company (which we shall call the Coal Company) is a citizen of New Jersey by virtue of its incorporation in that state. It filed its petition for the removal of the cause upon the two grounds, stated generally, of separable controversy and the joinder of Elswick as a defendant with the fraudulent intent to thereby prevent the removal of the case to this court. This petition was filed on July 5, 1915, and a proper bond was tendered and approved by the state court. On the same day that court denied the petition for removal, but in its order doing so reserved the right of further control over the matter after the case had been tried on the merits. The Coal Company then demurred specially and also generally to the petition, but neither demurrer was sustained by the court, and on the same day the Coal Company filed its answer. On that day, also, Elswick filed a general demurrer to the petition, which being overruled, his separate answer was filed. On July 20, 1915, the plaintiff filed a reply to the answer of the Coal Company. Afterwards a transcript of the record was filed in this court by the Coal Company, and the plaintiff moved to remand the action to the state court. This court, being in doubt about its jurisdiction, followed the general rule obtaining in such situations, and on November 29, 1915, sustained the motion to remand.

Subsequently the case was set for trial in the state court on the 11th day of April, 1916. On that day, and before the trial was begun, the Coal Company filed another petition for removal, stating therein, but more in detail, the same general grounds as those stated in the original petition for removal, and tendered another bond, which was also approved by the state court. On April 12, 1916, this petition for removal was also denied by the state court, and thereupon the Coal Company filed an amended answer to the merits. On April 13th the trial of the case before a jury was begun. On the 14th, the case having been heard, the jury, by a vote of none of its members, returned a verdict in favor of the plaintiffs for $10,000 damages against the Coal Company, but said nothing as to the issue between plaintiffs and Elswick. The state court, from this silence, inferred a verdict for Elswick, and accordingly adjudged that the plaintiffs recover $10,000 against the Coal Company, but nothing from the defendant Elswick, and dismissed the action as to him. Before the case was submitted to the jury the defendant Coal Company had moved the court to instruct a verdict in its favor, and defendant Elswick had also made a similar motion, but these motions were overruled. After the verdict had been rendered, but before the judgment thereon had been entered, though without filing another petition for removal, the Coal Company 're-entered' its 'motion' to remove the case to this court. This motion was overruled. In this situation the Coal Company again filed a transcript of the record in this court, and the plaintiffs have again moved to remand the case to the state court. It is thus that the interesting questions before us have been raised.

As has been seen, the Coal Company, on July 5, 1915, filed its petition for the removal of the suit to this court. This was within the time for answering as fixed in the state practice, and conformed, in that respect, to the provisions of the removal act. When on the same day the state court denied the petition for removal, the Coal Company filed its answer to the merits-- a step which did not waive its rights under the petition for removal. Railroad Co. v. Koontz, 104 U.S. 14, 26 L.Ed. 643. The second petition for removal set up grounds substantially similar to those stated nearly a year before in the first petition for removal, except that in the second petition it was alleged that no cause of action was stated in plaintiffs' petition against Elswick. The latter fact, however, is not a statutory ground for removal, though it sometimes becomes an important factor in considering grounds that are statutory, as, for example, it may show that a defendant is a mere nominal party, whose presence, for that reason, should not prevent removal.

Was the second petition filed within the time prescribed by the removal statute? and did the status of the case at the time it was filed justify that proceeding? are two important inquiries. Certainly it did not then appear from the record or the petition for removal that there had been any change in the situation of the parties since the final disposition of the first effort to remove, and the plaintiffs had taken no step which dismissed out of the case the defendant Elswick. In the case of Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 93, 18 Sup.Ct. 264, 42 L.Ed. 673, there had been filed a petition for the removal of the action to the Circuit Court because of a separable controversy and the fraudulent joinder of certain local defendants. The transcript of the record having been filed in the Circuit Court, the plaintiff moved to remand the case. This motion was sustained. Afterwards, when the case came before the state court, the plaintiff, in advance of a trial, voluntarily dismissed the action against the citizens of Kentucky, as to whom it had been alleged that there was a separable controversy and a fraudulent joinder. At once, but after that dismissal, the nonresident defendant filed another petition for the removal of the case, therein disclosing a right to remove by showing that the suit had become one which was solely between a plaintiff and a defendant of diverse citizenship. The case being thus removed to the Circuit Court, a trial was had there, with the result that judgment was rendered in favor of the defendant. After a hearing in the Circuit Court of Appeals, the question of jurisdiction was certified by it to the Supreme Court, which sustained the removal, and affirmed the judgment rendered by the Circuit Court, upon the distinct ground that the second petition for removal showed that when it was filed there existed the requisite diverse citizenship, and that the last petition was in time, because it had been filed in the state court as soon as the difficulty in the way of a removal had been taken out of the case by the plaintiff himself. The Supreme Court held that not until after the dismissal of the case against the Kentucky defendants had the record shown a state of fact which authorized the removal, but that simultaneously with that dismissal there for the first time appeared a controversy solely between a citizen of Kentucky and a citizen of another state, which state of fact was shown in the last petition for removal. But, while sustaining the right to file a second petition under such circumstances, the Supreme Court distinctly held that such step must be promptly taken in order to bring the case within the time fixed in the removal act. So that we see from that opinion that two things must...