Morris v. Louisville & N.R. Co.

• Decision Date: 12 January 1910
• Citation: 175 F. 491
• Parties: MORRIS v. LOUISVILLE & N.R. CO. et al.
• Court: U.S. District Court — Northern District of Georgia

175 F. 491

MORRIS v. LOUISVILLE & N.R. CO. et al.

United States Circuit Court, N.D. Georgia.

January 12, 1910

Westmoreland Bros., for plaintiff.

McDaniel Alston & Black, for defendants.

NEWMAN District Judge.

This suit was brought in the superior court of De Kalb county Ga., and removed from that court to the Circuit Court of the United States by the two railroad corporations. The petition for removal alleges:

'Your petitioners show that said cause contains and that there exists a controversy wholly between citizens of different states. Your petitioner the Louisville & Nashville Railroad Company was at the time of the commencement of the suit and still is a corporation created and existing under the laws of the state of Kentucky, and was and is a resident citizen, and inhabitant of said state of Kentucky. Your petitioner the Atlantic Coast Line Railroad Company was at the time of the commencement of the suit and still is a corporation created and existing under the laws of the state of Virginia, and was and is a resident, citizen, and inhabitant of said state of Virginia. Your petitioners further show that the plaintiff was at the time of the commencement of the suit and now is a citizen of the state of Georgia and of the Northern district thereof.

'Your petitioners show that there exists in said cause a separable controversy which is wholly between citizens of different states; that the said controversy is between the plaintiff and your petitioners, and that the same is separable and distinct from any right, claim, or controversy asserted against the other defendants, to wit, C. M. Dorster and P. M. McGuire.

'Your petitioners show that said suit shows upon its face that no cause of action exists against the resident defendants, Dorster and McGuire, for the reason that the acts of omission and neglect charged against them were not their acts as agents of your petitioners, the principals, but were the acts of your petitioners themselves, and were the acts of principals.

'Your petitioners show that the obligation to keep in repair machinery and instrumentalities which include the car which is alleged by the plaintiff to have contained a defect which caused his injury was a duty incumbent upon them as plaintiff's joint master, and that such duty could not be delegated by them to agents, but that the same continued to be their own duty.

'Your petitioners therefore show that the acts and omissions of Dorster and McGuire were in law their acts and omissions, and that the said Dorster and McGuire are charged with no act in the pleading which will enable plaintiff to maintain a joint action against them and petitioners.

'Your petitioners show, therefore, that for the reasons above set forth the said C. M. Dorster and P. M. McGuire were fraudulently joined in said suit, and for the purpose of preventing the removal thereof by your petitioners to the Circuit Court of the United States for the proper district.

'Your petitioners insist that the pleading shows upon its face that the act complained of and ascribed to said Dorster and McGuire was their act, and that in performing such act the said Dorster and McGuire were each, respectively, your petitioners' alter ego.

'Your petitioners aver that said petition upon its face states no cause of action against said Dorster and McGuire.'

In the petition for removal it is alleged that the plaintiff was at the time of the commencement of the suit and still is a citizen of the Northern district of Georgia, and the plaintiff's declaration shows that the defendants Dorster and McGuire are both residents of Fulton county, Ga., and consequently of this district.

It is perfectly clear in this case, I think, that there is no separable controversy between the railroad companies and the individual defendants, Dorster and McGuire, except so far as it may be involved in what is to be hereinafter stated. The real question is-- and that is the question discussed at the hearing on this motion to remand-- whether the plaintiff has any cause of action at all against Dorster and McGuire.

The case made by the declaration is: That the plaintiff was in the employ of the railroad companies as switchman and coupler, being a member of a switching crew, and part of his duties were to apply and release brakes on freight cars in making up and distributing trains in the railroad companies' yards. That on the afternoon of the 5th of December, 1908, it became necessary for the plaintiff to go upon the top of a cut of cars, which were being distributed by the crew, to apply the brakes, and after applying the brakes it became necessary for him to descend hurriedly from the top of the car to catch another cut of cars which had been kicked, in order to apply the brakes to stop them, and as he was descending from one of the cars of the first cut it was necessary for him to support himself in the descent by taking hold of the grab iron or handhold on top of the car and as he did so, and was in the act of descending down the ladder on the side, the handhold pulled out, throwing him to the ground, a distance of 12 or 15 feet, by which he received severe injuries, etc. That the car the plaintiff was descending from at the time he was injured-- 'was a car of the Southern Railway Company, the number of which was 16638, and had been brought into the Georgia Railroad yards (the defendants' yards) some time...