Lockhart v. Ross

• Decision Date: 28 October 1935
• Docket Number: 4-4000
• Citation: 87 S.W.2d 73,191 Ark. 743
• Parties: LOCKHART v. ROSS
• Court: Arkansas Supreme Court

87 S.W.2d 73

191 Ark. 743

LOCKHART v. ROSS

4-4000

Supreme Court of Arkansas

October 28, 1935

Appeal from Clark Circuit Court; Dexter Bush, Judge; reversed as to Jobe; affirmed as to Lockhart.

Action by H. H. Ross and others against Otto Lockhart, Nellie Jobe and others. Judgment for plaintiffs against the named defendants who have appealed.

Judgment affirmed in part and reversed in part and case dismissed.

H P. Smead and Fletcher McElhannon, for appellants.

J. H. Lookadoo and McMillan & McMillan, for appellees.

OPINION

BUTLER, J.

This appeal comes from a judgment based on a verdict in an action brought by the appellees against Otto Lockhart and Mrs Nellie Jobe, residents of the State of Texas, and Lillian Brunner and Louise Trueman, residents of the State of Arkansas, for the injury of a child in the residential section of the city of Arkadelphia, Arkansas, caused by the child being struck by an automobile driven by Otto Lockhart in which the other defendants were also riding. Liability was sought against the defendants other than Otto Lockhart on the theory that they were engaged in a common enterprise with him and that his negligence would be imputable to them. The trial resulted in a verdict in favor of Lillian Brunner and Louise Trueman and in favor of the plaintiff against Otto Lockhart and Nellie Jobe in a very substantial amount, which award by the jury is not questioned by the appellants, as being excessive.

1. The first ground urged for reversal is the refusal of the trial court to remove the case to the district court of the United States. The time within which the defendants were required to answer expired at noon on October 29, 1934, that being the first day of the court. Previous to this time apt notice and proper bond for removal were made and filed and before noon on October 29, 1934, the appellants filed their petition for removal of the cause to the Federal District Court; on the afternoon of the same day, filing what is called "An Amendment" to their petition. The last pleading filed was more in the nature of an amended petition than an amendment to the original petition, but this is immaterial. The petition, as first filed, after alleging the nature of the action and the diversity of citizenship of the defendants, contained the following allegations: "That plaintiffs have improperly and fraudulently joined as defendants in this cause the said Lillian Brunner and Louise Trueman for the sole and only purpose of attempting to defeat or prevent the removal of this cause to the United States District Court; that neither the said Lillian Brunner or Louise Trueman was, or now is, a necessary and proper defendant in this cause, and in their pleadings herein plaintiffs wholly fail to show any cause of action or right of recovery as against either of them, or both of them combined; that there was no common enterprise between them or either of them, and the said defendants, Lillian Brunner and Louise Trueman, in the use of said automobile causing said accident and the alleged negligence of the said Lillian Brunner and Louise Trueman, are not actionable at law nor do said allegations, even if taken as true, entitle said plaintiffs to recovery against said Lillian Brunner and Louise Trueman."

The amended petition (much abbreviated but stating its essentials), averred that the plaintiffs had improperly and fraudulently joined Lillian Brunner and Louise Trueman as codefendants for the purpose of vesting jurisdiction in the State courts and of divesting the district court of its jurisdiction. Plaintiffs denied with particularity the alleged negligent acts of Otto Lockhart in the operation of the automobile and denied that they knew of any facts from which they would be informed that Otto Lockhart would not be a proper driver, and denied knowledge of any of the alleged defects in the car he was operating. It was alleged that the allegations as to the negligence of the resident defendants were made for the purpose of divesting the district court of jurisdiction, and the true facts were stated to be that Lillian Brunner and Louise Trueman were riding in the automobile as passengers, having no interest in the same and not being engaged in a common enterprise with the petitioners; that the resident codefendants had no knowledge of the perilous position of the child before, or when, injured; that the accident was wholly unavoidable. Further and final allegations were made that "all of the above facts were known to the plaintiffs at the time of the filing of this cause, or could have been known by proper investigation; and that all the allegations in plaintiffs' complaint with reference to codefendants, Lillian Brunner and Louise Trueman, were made for the purpose of joining these parties as defendants, so that this court might be vested with jurisdiction, and that the district court of the United States might be divested of its jurisdiction; that plaintiffs have no cause of action against the codefendants, but if they do it is separable from any cause, if any, which plaintiffs have against petitioners."

It must be conceded that the petition as first filed was insufficient to authorize the removal of the cause. The allegation as to the fraudulent joinder merely stated a conclusion of law. No facts were alleged from which that conclusion might be deduced. This is necessary, and the failure to state the facts is fatal to the petitioner's right to remove for that cause. The allegations of the petition for removal considered by the court in the case of Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 58 L.Ed. 544, 34 S.Ct. 278, are set out in Missouri Pac. Ry. Co. v. Miller, 184 Ark. 61, 41 S.W.2d 971, with relation to the fraudulent joinder for the purpose of conferring jurisdiction in the Federal court are much fuller and more explicit than in the petition involved in the instant case, but the court them held that the allegations presented no basis for the relief prayed. It said that to merely apply the epithet "fraudulent" will not suffice. In Wilson v. Republic Iron Company, 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144, the court held that in a petition for removal the showing relating to the fraudulent joinder "must consist of a statement of facts rightly leading to that conclusion apart from the pleader's deductions." This court recognized the force of this rule in Mo. Pac. Ry. Co. v. Miller, supra, and in Phillips Petroleum Company v. Jenkins, 190 Ark. 964, 82 S.W.2d 264.

Under the rule announced, it therefore appears that the allegation as to fraudulent misjoinder was not imperfectly stated in the petition but, on the contrary, there was a total lack of allegation upon which the prayer of the petition might rest. The amended petition did not amplify pertinent allegations of the first petition nor does it set out in proper form what had theretofore been improperly stated, but injects a necessary allegation not contained in the first petition.

It has been held that, after time for pleading in the State court has passed, court may permit a petition previously filed to be amended where the amendment is a mere matter of form and not of material nature. Roberts v. Pacific & A. Railway & Nav. Co., 104 F. 577. And it is generally held that in the Federal courts the petition for removal may be amended where the amendment goes no further than to cure technical defects and to clarify allegations imperfectly stated or to amplify them. Carson v. Dunham, 121 U.S. 421, 7 S.Ct. 1030, 30 L.Ed. 992; Frazier v. Hines, 260 F. 874; Amerson v. W. U. Tel. Co., 265 F. 909; Hall v. Payne, 274 F. 237.

It is doubted whether in any case except in mere matters of form an amendment can be entertained in the State court to a petition filed within apt time where the amendment is filed after the period allowed for the filing of the petition for removal. Such an amendment was allowed by the Supreme Court of North Carolina in the case of Newton v. Liggett Myers Tobacco Company, 194 N.C. 816, 140 S.E. 742, but in that case the motion for leave to amend was made prior to the expiration of the time to answer. The court held that, for the purpose of a motion for removal, the amendment to the petition was deemed to have been filed as of the date of the motion to amend, and in that case it was further observed: "The amended petition is but a restatement of the grounds for removal."

In the case of Security Co. v. Pratt, 65 Conn 161, 32 A. 396, the Supreme Court of Connecticut, after stating the grounds for removal because of diverse citizenship, said: "There are decisions of circuit courts in support of the view that petitions which show no case for a removal may be amended or replaced by another at any subsequent time by leave of the State court, and that such action will relate back to the time when the original petition was filed. Such a doctrine seems to us to contravene the theory on which the fact of removal depends. In a case where a right of removal exists, the filing in due season of a proper petition and bond, when brought to the attention of the State court, ipso facto withdraws the suit from its jurisdiction; and, if the petition is thereafter amendable at all, it is only in the circuit court, and not there to the extent of introducing any new ground of removal. If, on the other hand, in such a case the petition claims the right of removal on wrong grounds, while it can be amended or replaced by another at any time within the period allowed for filing an original petition, yet, should this not be done, to allow the State court afterwards, by permitting an amendment, to make the suit removable, by virtue of a legal fiction as to the relation of amendments to the date of the pleading amended, is to allow the authority of a...