Murphy v. Stone & Webster Engineering Corporation

• Decision Date: 20 November 1911
• Citation: 119 P. 717,44 Mont. 146
• Parties: MURPHY v. STONE & WEBSTER ENGINEERING CORPORATION.
• Court: Montana Supreme Court

119 P. 717

44 Mont. 146

MURPHY v. STONE & WEBSTER ENGINEERING CORPORATION.

Supreme Court of Montana

November 20, 1911

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Action by Thomas Murphy against the Stone & Webster Engineering Corporation. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed and remanded.

E. C Day, for appellant.

Purcell & Horsky and Walsh & Nolan, for respondent.

BRANTLY C.J.

This action was brought by plaintiff to recover damages for personal injuries received by him during the course of his employment by the defendant corporation. When the action was commenced, one Edward Larmour, a fellow servant of plaintiff was made codefendant with the corporation; it being alleged in the complaint that he was incompetent and known to be so by his codefendant, and that the injury was caused by his negligence concurring with that of his codefendant. He was not served with summons, nor did he appear in the action. The defendant corporation demurred to the complaint, on the grounds, among others, that several causes of action were improperly united therein, and that there was a misjoinder of parties defendant. The demurrer was overruled, and this defendant answered, denying the material allegations of the plaintiff, and alleging, as special defenses, that the injury was caused by the negligence of a fellow servant, and that the plaintiff had assumed the risk. The case was reached for trial on October 5, 1910. When counsel for plaintiff announced that they were ready for trial, counsel for defendant presented a petition for removal of the case to the Circuit Court of the United States for the District of Montana, on the ground that it had assumed the form of a separate controversy between citizens of different states; plaintiff being a citizen of Montana and the defendant a citizen of Massachusetts. The petition was accompanied by a good and sufficient bond. Counsel for plaintiff resisted the application, contending that the defendant had waived its right to have the case removed, by reason of the following stipulation: "(Title of court. Title of cause.) It is hereby stipulated and agreed by and between the parties in the above-entitled action, and their respective attorneys, the undersigned, that, at the request of defendant's attorneys, the setting of the trial of said case, set to be tried on June 2, 1910, shall be canceled; and it is further stipulated and agreed that the case shall be set down for trial in said court not earlier than June 12, 1910, and shall be tried in said court on said date, or as soon thereafter as shall be convenient to said court to try the same Dated May 19, 1910." The court sustained the contention of plaintiff's counsel and ordered the trial to proceed. The result was a verdict and judgment in favor of plaintiff. The defendant has appealed from the judgment and an order denying its motion for a new trial.

Was the case removable? If so, the district court was without jurisdiction to proceed with the trial, and its judgment must be reversed for this reason, whether it might otherwise be sustained or not. In Golden v. Northern Pacific Ry Co., 39 Mont. 435, 104 P. 549, it was held by this court that a case in which the plaintiff and one of two defendants are citizens of different states assumes the aspect of a separate controversy as to such defendant and becomes removable when counsel for plaintiff, having failed to serve summons upon the other defendant and thus bring him within the jurisdiction of the court, announce that they are ready to proceed against the nonresident defendant alone. This was held to be a necessary conclusion from the fact that the election amounts to a complete severance of the action as to the nonresident defendant, as effectively as if it had been originally brought against such defendant alone. In so holding this court accepted as authoritative and binding the construction of the statute (Act March 3, 1875, c. 137, 18 Stat. 471 [U. S. Comp. St. 1901, p. 510]) declared to be the only reasonable one in Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673. In this case the court stated its conclusion as follows: "The reasonable construction of the act of Congress, and the only one which will prevent the right of removal, to which the statute declares the party to be entitled, from being defeated by circumstances wholly beyond his control, is to hold that the incidental provision as to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right; and to consider the statute as, in intention and effect, permitting and requiring the defendant to file a petition for removal as soon as the action assumes the shape...