Kraus v. Chicago, B. & QR Co.

• Decision Date: 24 November 1926
• Docket Number: No. 7331.,7331.
• Parties: KRAUS v. CHICAGO, B. & Q. R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

16 F.2d 79 (1926)

KRAUS v. CHICAGO, B. & Q. R. CO. et al.

No. 7331.

Circuit Court of Appeals, Eighth Circuit.

November 24, 1926.

H. C. Brome, of Basin, Wyo. (Thomas M. Hyde, of Basin, Wyo., and W. L. Walls, of Cheyenne, Wyo., on the brief), for plaintiff in error.

A. C. Campbell, of Cheyenne, Wyo., and A. E. Stirrett, of Casper, Wyo. (Bruce Scott and J. C. James, both of Chicago, Ill., on the brief), for defendants in error.

Before LEWIS, Circuit Judge, and MUNGER and FARIS, District Judges.

MUNGER, District Judge.

The questions involved in this case relate to the denial of the plaintiff's motion to remand the case to the state court. The plaintiff below is the plaintiff in error. He filed a petition in the state court of Wyoming against the Chicago, Burlington & Quincy Railroad Company and F. D. Stone, alleging that the plaintiff, as an employé of the Union Tank Car Company, as a part of his duties, was painting and repairing one of his employer's tank cars, which was then upon a railway track near an oil refinery in Wyoming, and that, while he was so employed, the defendants negligently propelled some tank cars against the car on which the plaintiff was working, causing the injuries of which he complains. Stone is alleged to have been the engineer in charge of the railway engine that caused the cars to be driven against the car on which the plaintiff was at work. Both the defendants were served with summons. The railroad company filed a petition for the removal of the case to the United States District Court upon the ground of a separable controversy between the plaintiff and itself, alleging diversity of citizenship, but did not allege that Stone and the plaintiff were citizens of different states.

The petition for removal charged (1) that the plaintiff had fraudulently joined the defendants as parties to prevent removal of the action from the state court; (2) that Stone had little means and was unable to satisfy any judgment that might be recovered, while the railroad company was able to satisfy such judgment; (3) that plaintiff did not intend to prosecute the action to a conclusion against Stone, or to satisfy any judgment obtained out of Stone's property. In addition the railroad company alleged (4) that Stone was a mere employé of the railroad company, and was operating the engine in backing the cars which struck the car on which plaintiff was working; that it was customary to protect cars on this track by the display of a blue flag, when men were at work about them, but that no such flag was displayed on this occasion; and that the engineer was not negligent in backing the cars, because of the absence of the blue flag, and because he was obeying a proper signal of another employé of the railroad company. The motion to remand alleged that both the plaintiff and Stone were residents of Wyoming and that the action was improperly removed.

It must be conceded that the removal was improper, if the defendants were properly joined. The plaintiff made no denial of the allegations in the petition for removal, but he contends that they were insufficient to authorize a removal. Allegations substantially the same as those contained in the petition for removal have been declared insufficient for that purpose in a number of cases decided by the Supreme Court of the United States, where similar questions were involved. The allegation (1) that one of the defendants was joined for the fraudulent purpose of preventing removal was also made in substance in the petitions for removal considered in Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 315, 316, 30 S. Ct. 101, 54 L. Ed. 208; Chicago, R. I. & Pac. Ry. v. Schwyhart, 227 U. S. 184, 193, 33 S. Ct. 250, 57 L. Ed. 473; Chicago, R. I. & Pac. Ry. Co. v. Dowell, 229 U. S. 102, 112, 113, 33 S. Ct. 684, 57 L. Ed. 1090; Chesapeake & Ohio Ry. v. Cockrell, 232 U. S. 146, 151, 152, 34 S. Ct. 278, 58 L. Ed. 544; Chicago, R. I. & Pac. Ry. v. Whiteaker, 239 U. S. 421, 423, 424, 425, 36 S. Ct. 152, 60 L. Ed. 360; McAllister v. Ches. & Ohio Ry. Co., 243 U. S. 302, 304, 310, 37 S. Ct. 274, 61 L. Ed. 735, but was held insufficient, because it was not a statement of fact, but was a mere conclusion, or the use of an epithet, and because it is not fraudulent to elect to sue tort-feasors jointly, where there is a joint and several liability, whatever may be the motive of the one bringing the suit.

The second allegation, that Stone had little means and was unable to satisfy any judgment recovered is similar to allegations in the petitions for removal in Chicago, R. I. & Pac. Ry. v. Schwyhart, 227 U. S. 184, 193, 33 S. Ct. 250, 57 L. Ed. 473, Chicago, R. I. & Pac. Ry. v. Dowell, 229 U. S. 102, 110, 114, 33 S. Ct. 684, 57 L. Ed. 1090, and Chicago, R. I. & Pac. Ry. v. Whiteaker, 239 U. S. 421, 424, 36 S. Ct. 152, 60 L. Ed. 360, but was held insufficient, because it is not fraudulent to enforce an absolute legal right by a suit, even if the defendant may not be able to satisfy the judgment, and the motive of the plaintiff in such a suit is of no importance.

The third allegation, that plaintiff did not intend to prosecute the action to a conclusion against Stone, or to satisfy out of Stone's property any judgment obtained, is substantially the same as was contained in the petitions for removal in Chicago, R. I. & Pac. Ry. v. Whiteaker, 239 U. S. 421, 424, 425, 36 S. Ct. 152, 153 (60 L. Ed. 360), where it was alleged that "plaintiff, when he instituted the action, had no reasonable hope, intention or expectation of recovering any judgment against Drake," and to the allegation in the petition for removal in McAllister v. Ches. & Ohio Ry. Co., 243 U. S. 302, 304, 311, 37 S. Ct. 274, 275 (61 L. Ed. 735), that one defendant was made a party "without any intention on the part of the plaintiff of proving against it any of the acts of negligence alleged in the petition."

The fourth and remaining charge, that the facts stated in the plaintiff's petition were not true, and that Stone was not negligent in what he did, is a mere denial of the allegations of the plaintiff's petition. Similar denials were contained in the petitions for removal in Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 315, 319, 30 S. Ct. 101, 54 L. Ed. 208, where it was charged that the allegation of joint negligence was knowingly false; in Chesapeake & Ohio Ry. v. Cockrell, 232 U. S. 146, 151, 152, 153, 34 S. Ct. 278, 58 L. Ed. 544, where it was alleged that the charges of negligence were each and all false and untrue and made as a basis for the fraudulent joinder of the defendants; in Chicago, R. I. & Pac. Ry. v. Whiteaker, 239 U. S. 421, 424, 425, 36 S. Ct. 152, 60 L. Ed. 360, where it was alleged that plaintiff had no cause of action against Drake, as the plaintiff well knew when he brought suit; and in Southern Railway v. Lloyd, 239 U. S. 496, 497, 501, 36 S. Ct. 210, 60 L. Ed. 402, where the petition for removal alleged that an injury did not occur in interstate commerce, although plaintiff's petition had alleged the contrary.

Allegations of the nature of those contained in the third and fourth charges were condemned in the cases cited as insufficient charges of a fraudulent joinder of defendants, because they merely traversed the allegations of the plaintiff as to the liability of the resident defendant, and it was declared that the plaintiff in such a case could not be deprived of a trial before the only tribunal that had jurisdiction by an allegation in the petition for removal that the plaintiff's averments were false. See, also, Louisville & Nashville R. R. Co. v. Wangelin, 132 U. S. 599, 603, 10 S. Ct. 203, 33 L. Ed. 474.

There is a further claim by the defendant in error that a fraudulent joinder of the defendants is shown, because the plaintiff could not legally join as defendants, under the laws of Wyoming, the engineer and the railway company which employed him. The petition for removal denied that the engineer was guilty of any negligence. The same condition was presented in Chicago, R. I. & Pac. Ry. v. Whiteaker, ...