Offner v. Chicago & E.R. Co.

• Decision Date: 02 October 1906
• Docket Number: 1,241.
• Citation: 148 F. 201
• Parties: OFFNER v. CHICAGO & E.R. CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

148 F. 201

OFFNER v. CHICAGO & E.R. CO. et al.

No. 1,241.

United States Court of Appeals, Seventh Circuit.

October 2, 1906

This action, to recover damages on account of the death of Jacob Offner through the negligence of the railroad companies, was begun in the Circuit Court of Cook County, Ill. On petition of the Chicago & Erie, it was removed into the court below. There the plaintiff was defeated on the merits. In this court assignments of alleged errors of law occurring at the trial were presented, but during the argument the legality of the removal was questioned.

The declaration charged that the defendants owned, controlled and used a certain railroad yard in Chicago; that Offner was employed by the Chicago & Erie as a car inspector; that while he was properly at work, repairing a car in said yard, the Chicago & Erie, with knowledge of his dangerous position and without warning him, negligently permitted a Western Indiana engine to be run with great violence against the car under which he was at work, and the Western Indiana, with like knowledge of his danger and without warning negligently ran its engine against the car; that Offner was free from fault; and that the negligent acts of the defendants concurred in causing his death.

Plaintiff was a citizen of Illinois, the Western Indiana a corporation of Illinois, and the Chicago & Erie of Indiana. Separable controversy was the ground of removal. The petition, verified by an attorney, averred that the Western Indiana 'was not a party to the alleged negligence,' and 'was fraudulently joined as a party defendant solely for the purpose of defeating your petitioner's right to remove this cause.'

Cyrus Wood, for plaintiff in error.

George C. Gale, for defendants in error.

Before BAKER and SEAMAN, Circuit Judges, and QUARLES, District Judge.

BAKER Circuit Judge, having stated the case, .

The fact that there was no motion to remand is irrelevant to the question. Federal courts are strictly limited in their authority to hear controversies. Agreement of parties cannot enlarge the Constitution and laws of the United States; much less can omission or oversight.

'It is equally well settled that in any case the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition or in the affidavits of the petitioner, unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court. ' Louisville & Nashville R Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed 473; Alabama Southern Ry. Co. v. Thompson, 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed. 441, and cases therein reviewed.

1. The averment of the petition that the Western Indiana 'was not a party to the alleged negligence' is of no avail in the face of the charge in the declaration that that company, with knowledge of Offner's peril, and without giving him any warning, ran its engine upon him, because that averment comes under the general rule, and not under the exception.

2. Respecting the averment of the petition that the Western Indiana 'was fraudulently joined as a party defendant solely for the purpose of defeating your petitioner's right to remove this cause,' the exception stated in the authorities requires both proper pleading and due proof of fraudulent joinder.

In a case involving the sufficiency of a petition for removal which alleged that the action arose under the laws of the United...