Leonard v. St. Joseph Lead Co., 9905.

• Decision Date: 28 January 1935
• Docket Number: No. 9905.,9905.
• Citation: 75 F.2d 390
• Parties: LEONARD v. ST. JOSEPH LEAD CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

75 F.2d 390 (1935)

LEONARD v. ST. JOSEPH LEAD CO. et al.

No. 9905.

Circuit Court of Appeals, Eighth Circuit.

January 28, 1935.

COPYRIGHT MATERIAL OMITTED

Staunton E. Boudreau, of St. Louis, Mo. (Everett Hullverson, of St. Louis, Mo., on the brief), for appellant.

John S. Marsalek, of St. Louis, Mo. (William R. Gentry and Nagel, Kirby, Orrick & Shepley, all of St. Louis, Mo., on the brief), for appellees St. Joseph Lead Co., Doe Run Lead Co., Daniel K. Catlin, Firmin Desloge, and M. F. Watts.

Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action commenced by appellant as plaintiff in the circuit court of the city of St. Louis, Mo., to recover damages in the sum of $30,000 from the defendants therein, on account of personal injuries alleged to have been caused by the failure of the corporate defendants and the individual defendants to comply with the so-called occupational disease statutes of Missouri, and particularly section 13260, Revised Statutes of Missouri 1929 (Mo. St. Ann. § 13260, p. 4806). Service of process was had on the corporations St. Joseph Lead Company and Doe Run Lead Company, and upon Daniel K. Catlin, Firmin Desloge, M. F. Watts, and Charles H. Grover, individual defendants. To avoid confusion, the parties will be referred to as they appeared in the lower court.

Plaintiff's petition alleges that the corporate defendants were engaged in the manufacture and process of mining, blasting, and crushing ore and lead and silica substances at their mines and places of manufacture in St. Francois county, Mo., and were engaged in a trade or process which might produce illness or disease peculiar to the work or process, and which subjected employees to the dangerous illness or disease incident to the work or process of milling and grinding silica and lead ore. It is alleged that eleven individual defendants, including the four upon whom service of process was had, constituted the board of directors of the corporate defendants, and that "as such directors were their managing and directing agents, and charged by law, and in fact by said corporation, with the duty to have said corporate defendants comply with and observe the provisions of the statutes of this state, which it is hereinafter stated they and their said principals, said corporate defendants, negligently failed to do." It is also alleged: "That at all times herein mentioned St. Joseph Lead Company, a corporation, in fact owned, controlled and operated as an agency used solely for the furtherance of its own business, the defendants Doe Run Lead Company, a corporation, and Federal Lead Company, a corporation, and that each and all the acts of negligence herein stated to have been done by the latter corporate defendants, were in fact and in law done by each of them, also as the agent of defendant St. Joseph Lead Company, and were in fact and in law the acts and omissions of defendant St. Joseph Lead Company."

It is further alleged: "that at all times hereinafter mentioned he was employed by the defendants and used in the same employment for the various defendants, and at all times hereinafter mentioned for a long time prior to the filing of this petition, was employed by defendants, as a laborer and miner at defendants' mines and places of business in St. Francois County, Missouri, and as such was required and directed by the defendants to assist in various ways in the manufacture, mining, crushing, and grinding of the lead and silica products and ores above described."

The petition also alleges facts showing the failure to comply with section 13260, Revised Statutes of Missouri 1929 (Mo. St. Ann. § 13260, p. 4806), and the injury resulting therefrom to plaintiff.

Upon the petition of the defendant St. Joseph Lead Company, the case was removed to the United States District Court, on the ground that a separable controversy was involved between it and plaintiff. The petition for removal alleged that plaintiff was a resident and citizen of Missouri; that the St. Joseph Lead Company was incorporated under the laws of New York, and was a citizen and resident of New York; that the Doe Run Lead Company was a citizen and resident of Missouri; that the Federal Lead Company was formerly a Missouri corporation but had been dissolved before the commencement of this action; and that the individual defendants, other than those served with process, were nonresidents, and had not been served with process and could not be served with process. One of the named individual defendants was shown to have been dead. In various forms it is alleged that plaintiff was employed by defendant St. Joseph Lead Company and not by any of the other defendants; that the other defendants had nothing to do with the employment of plaintiff or the conditions under which he worked, and that they knew nothing about his working conditions; that the Doe Run Lead Company was a corporation, separate and distinct from the St. Joseph Lead Company, and had nothing whatever to do with the employees of the St. Joseph Lead Company; that it was the sole duty of the defendant St. Joseph Lead Company to furnish appellant a reasonably safe place in which to work.

In due time, plaintiff moved to remand the cause to the state court. No showing of any kind was made as the basis for this motion, except that in the motion to remand it is stated in effect that plaintiff's petition shows that the action is not severable as to the St. Joseph Lead Company, and certain allegations of the petition are quoted. It is also stated in this motion that "the allegations of fraudulent joinder of parties contained in the said petition are not sufficient to give this court jurisdiction on account of any such alleged fraudulent joinder."

In opposition to the motion to remand, the St. Joseph Lead Company and the Doe Run Lead Company submitted affidavits. These set forth that the Doe Run Lead Company is a separate, independent corporation, operating certain mines for itself and by itself; that the St. Joseph Lead Company owns and operates other mines for itself and by itself; that each corporation owns and controls its own mines and assets separately and apart from the mines and assets of each and every other corporation; that none of said corporations operates mines together as the agent for each other, either directly or indirectly.

(As it appears that the Federal Lead Company has for several years been out of business, had been dissolved, and was not served with process, it is omitted from the statement of facts, as are also the individual defendants not served with process.)

As to the individual defendants served with process, these affidavits set forth that they gave no orders or directions as to the condition of the mines, places of work, machinery, hours of labor, manner and time of entering the mines or working therein; that they had nothing to do with working the mines, knew nothing of the conditions under which plaintiff worked, had nothing to do with the operation, management, or manner of controlling the work of the men in the mines. It appears from these affidavits that the individual defendants are directors of the St. Joseph Lead Company.

Upon this showing the lower court entered an order denying plaintiff's motion to remand, and sustained a plea to the jurisdiction interposed by the St. Joseph Lead Company and the Doe Run Lead Company. Plaintiff then made a motion for rehearing on the motion to remand, on the ground that he was to have had a certain length of time in which to file affidavits and briefs, and that the court, before the expiration of the time fixed and before the filing of a brief, had made the order denying the motion to remand and sustaining the plea to the jurisdiction. On June 29, 1933, he filed the affidavit of Everett Hullverson in support of the motion to remand. This was after the court had made the order denying the motion to remand, but within the time allowed plaintiff to file affidavits in support of the motion to remand. The court denied the motion for rehearing, and plaintiff having declined to plead further, dismissed the cause for want of prosecution. This appeal is from the judgment of dismissal.

The appeal, therefore, presents for review the order of the court denying plaintiff's motion to remand, and this requires a consideration of three questions: (1) Whether the directors served with process were fraudulently joined as parties; (2) whether the Doe Run Lead Company was fraudulently joined as a party, either (a) as an employer concurrently negligent with the St. Joseph Lead Company, or (b) as an agent of the St. Joseph Lead Company.

It is well settled that the presence of a party whom plaintiff has joined with fraudulent intent, for the purpose of preventing removal, may be disregarded in determining the question of removability, and will not prevent removal by a nonresident defendant if all jurisdictional requisites otherwise exist. Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144; Wecker v. National Enameling, etc., Co., 204 U. S. 176, 27 S. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757; Chesapeake & O. R. Co. v. Cockrell, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Illinois C. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Clancy v. Brown (C. C. A. 8) 71 F.(2d) 110; Nelson v. Black Diamond Min. Co. (D. C.) 237 F. 264; Bradshaw v. Bowden (D. C.) 226 F. 323. The cause of action must be determined by reference to the well-pleaded facts of the plaintiff's petition viewed in an action at law from the standpoint of the law of the state, and matters of defense furnish no ground for removal. Watson v. Chevrolet Motor Co. (C. C. A. 8) 68 F.(2d) 686, 688; Morris v. E. I. Du Pont De Nemours & Co. (C. C. A. 8) 68 F.(2d) 788. If a resident defendant is joined, the joinder, although fair upon its face, may nevertheless be shown on petition for removal to be merely a sham or...