Landers v. Felton

• Decision Date: 18 April 1896
• Citation: 73 F. 311
• Parties: LANDERS v. FELTON et al.
• Court: United States Circuit Court, District of Kentucky

73 F. 311

LANDERS v. FELTON et al.

United States Circuit Court, D. Kentucky.

April 18, 1896

Bell &amp Bell, W. C. Bell, and Gaither & Vanarsdall, for plaintiff.

Edward Colston, for defendants.

TAFT Circuit Judge.

This is a motion to remand. Plaintiff brings his action against S. M Felton, receiver of the Cincinnati, New Orleans & Texas Pacific Railway Company, appointed by the circuit court of the United States for the district of Kentucky. The Cincinnati, New Orleans & Texas Pacific Railway Company is a corporation organized under the laws of Ohio, and a citizen thereof; the Southern Railway in Kentucky is a corporation organized under the laws of Kentucky; and Jerry Pannell is a citizen of Kentucky. The petition of the plaintiff, after alleging the citizenship of the corporate defendants, and the fact that the defendant Felton was appointed receiver of the Cincinnati, New Orleans & Texas Pacific Railway Company by the circuit court of the United States for the district of Kentucky, alleges that the tracks of the two companies are operated jointly by the receiver and by the Southern Railway in Kentucky, at Burgin; that Jerry Pannell was the employe under the joint control of both the receiver and the Southern Railway, in charge of the yard engine; and 'that said defendant Pannell, then in charge of said yard engine at said time and place, as such employe of the other defendants, by gross neglect and carelessness, did run said engine, jointly owned and operated by said receiver and the Southern Railway Company in Kentucky, over and against plaintiff's intestate, and did then and there so injure the plaintiff'sintestate that he died. ' Two petitions for removal were filed. One was filed by S. M. Felton, receiver of the Cincinnati, New Orleans & Texas Pacific Railway Company, and the Cincinnati, New Orleans & Texas Pacific Railway Company. This petition averred that Felton and the Cincinnati, New Orleans & Texas Pacific Railway Company were citizens of states other than Kentucky, that the plaintiff was a citizen of Kentucky, and that the controversy was between citizens of different states. The petition continued:

'And your petitioners aver that the persons named as co-defendants in this case, to wit, the Southern Railway Company in Kentucky and Jerry Pannell, are not proper parties defendant to this case, and are improperly and fraudulently joined as defendants herein for the sole purpose of preventing the removal of this cause to the circuit court of the United States; it being alleged that the said Jerry Pannell and the Southern Railway Company in Kentucky are jointly liable with your petitioners for the acts and omissions in the petition complained of; the facts being that the said Jerry Pannell was, at the time of the said acts and omissions, acting in the employ of the said S. M. Felton, receiver, and not in the employ of any other of the defendants, and the said acts and omissions were done by him solely in carrying on the business of the said S. M. Felton, receiver, and as his servant, and not in carrying on the business of the Southern Railway Company in Kentucky, and that the Southern Railway Company in Kentucky is not liable for said acts or omissions of the said Pannell, or otherwise, to the plaintiff. All of which facts are, and at the time of the bringing of this suit were, well known to the plaintiff.'

The second petition for removal was filed by S. M. Felton, as receiver, on the ground that the suit arose under the constitution and laws of the United States, and was brought against Felton under that clause of the jurisdiction acts of 1887 and 1888 which permits receivers appointed in the federal court to be sued without first obtaining leave of the court to sue. The petitions for removal were demurred to in the state court. The state court sustained the demurrers, and overruled the motion of the defendant to remove the cause. A transcript has nevertheless been filed in the court below, and the motion is now made to remand.

It is very clear that under the decision of this court in the case of Warax v. Railway Co., 72 F. 637, on the face of the plaintiff's petition, Pannell is improperly joined as a party defendant with the receiver and the Southern Railway Company, because the ...