Lowery v. Zorn

Decision Date05 December 1934
Docket Number4950
Citation157 So. 826
CourtCourt of Appeal of Louisiana — District of US
PartiesLOWERY v. ZORN et al

H. B Lingle and Harry V. Booth, both of Shreveport, for plaintiff-appellant.

E. W. &amp P. N. Browne and Hoye Grafton, all of Shreveport, for defendant-appellant.

W. B Massey, of Shreveport, and C. B. Fuller, of Andalusia, Ala for appellee.

OPINION

MILLS, Judge.

Christopher C. Lowery, a resident of DeSoto parish, La., acting individually and in behalf of his two minor sons, Quinton and Julius, brings, in the district for the parish of Bossier, this suit against J. J. Zorn, doing business as the J. J. Zorn Gin & Warehouse Company, domiciled in, and a citizen of, the state of Alabama; the Maryland Casualty Company, alleged to be a foreign corporation qualified to do business in this state; and W. C. Talley, a resident of Bossier parish.

Petitioner alleges that on or about December 8, 1933, he engaged Zorn to transfer him, his two minor sons, as paying passengers, and his household effects from Hacada, Ala., to a farm in DeSoto parish, La.; that on or about December 20, while en route, the Chevrolet truck belonging to Zorn and being driven by his agent, E. P. Williams, collided with a car being driven by W. C. Talley, causing the injuries sued for. He alleges that Zorn's driver was negligent in that, when approaching the Bossier end of the Texas Street bridge over Red river, at Shreveport, he heedlessly drove into an intersection against a red traffic light, colliding at the center of the intersection with the car driven by Talley, who is also alleged to have been negligent in that he failed to apply his brakes or to take the proper steps to avoid the collision after he saw, or should have seen, that the Zorn truck was not going to stop; that the Maryland Casualty Company is liable as the insurer of Zorn.

The petition is first met by an application on the part of Zorn and his insurer for removal to the United States District Court for the Western District of Louisiana, on the ground of diversity of citizenship. The usual jurisdictional averments are made, together with the following: That Talley, the resident defendant, is not a necessary party to the suit; that in a previous action brought on the same cause, and upon due application removed to the above designated federal court, Talley was not made a party defendant, but, on the contrary, was exonerated from all blame, sole responsibility being charged to Zorn; that plaintiff has made statements to the same effect; that when the present suit was brought Talley was insolvent to the knowledge of plaintiff, and movers solvent; that Talley is joined herein solely for the purpose of preventing removal, and not in good faith; that after the service of this petition plaintiff filed in the federal court a motion to dismiss the original suit; that in the present suit no cause of action is alleged as to Talley.

An exception that the petition for removal failed to state a cause or right of action was never passed upon. The issuance of this order for removal was resisted, and refused by the trial judge. Defendants, on appeal, insist that the refusal to grant the order was erroneous and that the cause should now be removed as prayed for.

The only ground urged in the petition for removal is diversity of citizenship. It is conceded that all other requirements are complied with in the application and that there is such diversity between plaintiff and the two defendants seeking removal, but plaintiff contends that Talley, the third defendant, is correctly alleged to be a citizen of Louisiana. This is not denied by defendants seeking removal, nor do they contend that the case is removable unless facts are shown that, on their face, are sufficient to support the allegation that Talley was made a party without any legal ground therefor, in bad faith, and solely for the purpose of defeating removal.

It is well settled that state courts have the right to determine whether or not a petition for removal to a federal court, on its face, shows a legal right to same. If such showing is made, the state court cannot try the issue and determine the truth or falsity of the allegations, but must grant the removal. Chesapeake & Ohio R. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 280, 58 L.Ed. 544.

This same case well states the rule in cases such as that presented here, as follows:

"A civil case, at law or in equity, presenting a controversy between citizens of different states, and involving the requisite jurisdictional amount, is one which may be removed by the defendant, if not a resident of the state in which the case is brought; and this right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. Citing cases. So, when in such a case a resident defendant is joined with the non-resident, the joinder, even although fair upon its face, may be shown by a petition for removal to be only a fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly engendering that conclusion. Merely to traverse the allegations upon which the liability of the resident defendant is rested, or to apply the epithet "fraudulent' to the joinder, will not suffice; the showing must be such as compels the conclusion that the joinder is without right and made in bad faith." "The word "fraud' used in this sense is not used in its popular or ordinary meaning, but signifies the result of plaintiff's, either intentionally or otherwise, joining as party defendant one who cannot under the evidence submitted be jointly liable." Scherrer v. Foster et al. (D. C.) 5 F.2d 236, 238. These allegations of fact are relied on to justify the conclusion that Talley was joined herein in bad faith, in fraud of petitioner's rights, and with the sole purpose of preventing a second removal. Stripped of conclusions, we will take up the allegations of fact relied on in the petition for removal. We find that a previous suit for the same cause, in which Talley was not made a party defendant, was brought in the District Court of Bossier parish and removed, as alleged; and that in that case no negligence was alleged on the part of Talley. In the present suit we find that Talley is charged with, " (3)5C at or about the time he drove his car into the said intersection he fully observed, or should have observed, the approaching Chevrolet truck proceeding towards him and the intersection at an unlawful rate of speed, the driver of the said truck showing or making no apparent intention of stopping his truck at the intersection or observing the intersectional traffic signal; and that regardless of these facts and observations by the said Talley he continued to proceed across the intersection in the face of the oncoming truck and consequent impending danger and injury to your petitioner without applying his brakes or making any effort to stop when it was within his power and control to bring his car to a dead stop and when he should have stopped."

This is certainly an allegation of negligence and a statement of a cause of action against Talley. While it is true that in the original suit no negligence on the part of Talley is charged, it is equally true that in it there is nothing inconsistent with the above allegations, the first petition being, as to them, wholly silent.

Under the rule of pleading, the allegation of insolvency must be taken as true, but it alone is not sufficient to establish a fraudulent intent. It is an element to be considered on the question of motive.

Responsibility for an accident is a mere legal conclusion. A party to a collision is not bound by a statement that he does not hold the other responsible.

The motion to dismiss the first case, filed in the federal court, but follows out the course pursued by bringing the second suit.

We have no difficulty whatever in finding from the facts alleged and the history of the two cases that the motive in joining Talley, a resident, as a party in the second suit was to prevent its removal. But this does not suffice. The motive of the plaintiff taken by itself does not affect the right to remove. If there is a joint liability, he has an absolute right to enforce it as to all joint defendants, whatever the reason that moves him to assert the right. The fact that one is rich and one poor does not affect the case. Chicago R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473. There can be no fraudulent joinder where the plaintiff has a legal right to bring a joint action. In determining this question, the law looks to the case made in the pleadings. Chicago B. & Q. Ry. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Illinois Central Ry. Co. v. Sheegog, 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208.

Where a third person is injured by the collision of two automobiles, it is usual and prudent, where any possible ground for it exists, to make both drivers, or their principals, parties defendant. The fact of liability is only determined in a trial of the case. The failure to recover as to one such party does not establish fraud in joining him as a defendant.

So, in this case we find that, whatever plaintiff's motive may have been, he had the legal right, on the face of the pleadings, to make Talley a party defendant; that he was not a sham defendant; and that therefore his action in so doing was not fraudulent or in bad faith as defined in the decisions having to do with the removal of causes. We therefore find that the trial judge was within his jurisdictional rights, and correct, in refusing the motion for removal. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233. Defendants Zorn and the Maryland Casualty Company...

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