Missouri Pac. R. Co. v. Miller

• Decision Date: 29 June 1931
• Docket Number: No. 75.,75.
• Citation: 41 S.W.2d 971
• Parties: MISSOURI PAC. R. CO. v. MILLER et al.
• Court: Arkansas Supreme Court

Page 971

41 S.W.2d 971

MISSOURI PAC. R. CO. v. MILLER et al.

No. 75.

Supreme Court of Arkansas.

June 29, 1931.

Rehearing Denied October 5, 1931.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Suit by Bryan Miller and others against the Missouri Pacific Railroad Company and another. From a judgment in favor of plaintiffs against both defendants, named defendant appeals.

Affirmed.

Pryor & Pryor and W. L. Curtis, all of Ft. Smith, for appellant.

Partain & Agee, of Van Buren, for appellees.

BUTLER, J.

About 6 o'clock on the afternoon of April 22, 1930, Cruce Miller was traveling in an automobile on the public highway which crossed the line of the Missouri Pacific Railway about four miles east of Sallisaw, Okl., at approximately right angles. The highway ran in a general north and south direction and the railroad in an east and west direction, and the crossing which Cruce was approaching at the time of the accident was commonly called the Jack Bradley crossing. As Cruce Miller approached this crossing from the north, one of defendant's trains, operated by Frank Hedrick, the engineer, was approaching from the east. Both the automobile and the engine of the train reached the crossing at approximately the same time, resulting in a collision which wrecked the car and injured Miller, from which injuries he died within a few hours. The owner of the automobile, Bryan Miller, a brother of Cruce Miller, and W. F. Miller, as administrator of the estate of Cruce Miller and next of kin, brought suit against the defendants; the owner of the car, to recover for damages to same, and the other, as administrator and next of kin, for damages for the injury and death of Cruce Miller. This suit was brought in the circuit court of Crawford county against Frank Hedrick, the engineer, a citizen and resident of the state of Arkansas, and the Missouri Pacific Railroad Company, a foreign corporation. In apt time a petition accompanied by the proper bond was filed in the circuit court for the removal of the cause to the federal court. The petition was denied and the prayer for removal refused, to which action of the court timely and proper objection was made and exceptions reserved.

A trial was had which resulted in a verdict against both defendants in favor of the plaintiff, the owner of the car, for damages in the sum of $200, and in favor of the plaintiff W. F. Miller as administrator of the estate of Cruce Miller in the sum of $5,000, and for benefit of next of kin in the sum of $500. Judgment was entered in accordance with the verdict, and within the time provided by law the defendant Missouri Pacific Railroad Company filed its motion for a new trial, which was overruled. Thereupon the railway company duly excepted and appealed to this court.

1. It is first insisted that the trial court erred in denying the petition of the defendant railway company for the removal of the cause of action from the Crawford circuit court to the United States District Court. The complaint alleged that the train which struck the automobile was being operated by Frank Hedrick at the time of the accident as a servant of the railway company and as the engineer controlling and operating the locomotive, and that he operated such at a careless and reckless rate of speed, to wit, fifty miles an hour, while approaching the crossing, and failed and neglected to ring a bell or sound a whistle or to give any other signal or warning of the approach of said train and neglected to exercise ordinary and reasonable care to keep and maintain a proper lookout for persons and property approaching, or upon, the crossing; that he failed to exercise ordinary and reasonable care to avoid striking the automobile driven by plaintiff's intestate, and injured him by not giving the proper signals and warning or by stopping and slowing the movement of said engine and train.

In the petition for removal, the several allegations of negligence were denied, and the plea of contributory negligence on the part of Cruce Miller was interposed, with the further allegation that:

"Your petitioner states that all of the allegations of negligence charging Frank Hedrick jointly with this defendant do not state facts, and the said Frank Hedrick is made a party to this suit for the sole and only purpose of preventing your petitioner herein from removing this cause to the Federal Court."

"That the grounds of negligence alleged in the complaint state no joint liability on the part of defendants. The employee of the railroad company, so far as the cause of action is concerned, is neither a proper or necessary party. The allegations of the complaint, if conceded to be true, would not render this petitioner and the resident employee jointly liable. Your petitioner states that this is true of each and every material allegation of the complaint. That there are separable controversies involved in this suit, and in none of said controversies is the defendant, Frank Hedrick, a necessary or proper party."

There is no question that the right of a nonresident defendant, sued in a state court, to remove the case to the federal court, cannot be defeated by the fraudulent joinder of a resident employee as codefendant who was in no way responsible for plaintiff's injuries, and that, where an issue of fact is raised upon the petition for removal of a cause to a federal court, that issue must be tried in the federal court and not in the state court. St. Louis S. W. Ry. Co. v. Adams, 87 Ark. 136, 112 S. W. 186; St. Louis-S. F. R. Co. v. Britton, 163 Ark. 255, 259 S. W. 730; Wecker v. National Enameling Co., 204 U. S. 176, 27 S. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757. It is clear from the allegations of the complaint that the negligence of Hedrick was the proximate cause of the collision, and therefore he was liable personally for resulting damages, and the defendant railway company was also liable, as it was alleged that Hedrick was in its employ and the engineer who was in control of the locomotive at the time of the collision. Consequently, a joint cause of action was stated against the employee and the employer under the laws of the state of Oklahoma. Kugler v. White, 91 Okl. 130, 216 P. 903. It will be observed that in the petition there was a mere denial of the allegations of negligence and the declaration that "Frank Hedrick is made party to this suit for the sole and only purpose of fraudulently preventing your petitioner herein from removing this cause to the federal court." However, there is no allegation in the petition of any state of facts from which this conclusion might be drawn. It is not denied that Hedrick was the engineer or that he was in charge of, and operating, the locomotive at the time of the collision. The allegations in the petition are much the same as those in the case of Chicago, R. I. & P. Ry. Co. v. McKamy, 180 Ark. 1095, 25 S.W.(2d) 5, 7, where it is said: "No facts were set forth therein [the petition for removal] tending to show that the joinder of appellant and E. G. Medlock in that part of paragraph (c) was a fraudulent device to prevent a removal of the cause."

In the case of Southern Ry. Co. v. Lloyd, 239 U. S. 496, 36 S. Ct. 210, 60 L. Ed. 402, the court said: "Allegations in the petition for the removal of an alleged separable controversy to a Federal court for diverse citizenship are not sufficient where they amount simply to a traverse of the facts alleged in the plaintiff's petition, and in that way undertake to try the merits of a cause of action good upon its face."

In the case of Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, 34 S. Ct. 278, 279, 58 L. Ed. 544, where the allegation of the complaint and those in the petition for removal are in all essential matters the same as those in the case at bar, in passing upon the question of whether or not the case was removable from the state to the federal court, the court said:

"Rightly understood and much abbreviated, the plaintiff's petition, after stating that the train was being operated by the engineer and fireman as employees of the railway company, charged that the injury and death of the intestate were caused by the negligence of the defendants (a) in failing to maintain an adequate lookout ahead of the engine, (b) in failing to maintain any lookout upon the left or fireman's side, from which the intestate went upon the track, (c) in failing to give any warning of the approach of the train, and (d) in continuing to run the train forward after it struck the intestate, and was pushing her along, until it eventually ran over and fatally injured her, when it easily could have been stopped in time to avoid material injury. * * *

"The railway company's petition for removal, while not denying that the engineer and fireman were in the employ of the company, or that they were operating the train when it struck and injured the intestate, did allege that the charges of negligence (all being specifically repeated) against the defendants were each and all `false and untrue, and were known by the plaintiff, or could have been known by the exercise of ordinary diligence, to be false and untrue, and were made for the sole and fraudulent purpose of affording a basis, if possible, for the fraudulent joinder' of the engineer and fireman with the railway company, and of `thereby fraudulently depriving' the latter of its right to have the action removed into the Federal court; and that none of the charges of negligence on the part of the engineer or fireman could be sustained on the trial. * * *

"As in other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts, and that, in the event of a removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition. * * *

"As they [the engineer and fireman] admittedly were in charge of the movement of the...