Phillips Petroleum Co. v. Jenkins

• Decision Date: 06 May 1935
• Docket Number: 4-3830
• Citation: 82 S.W.2d 264,190 Ark. 964
• Parties: PHILLIPS PETROLEUM COMPANY v. JENKINS
• Court: Arkansas Supreme Court

82 S.W.2d 264

190 Ark. 964

PHILLIPS PETROLEUM COMPANY v. JENKINS

4-3830

Supreme Court of Arkansas

May 6, 1935

Appeal from Ouachita Circuit Court, Second Division; W. A. Speer Judge; modified and affirmed.

Judgment modified, and affirmed.

Marsh & Marsh, Mahony & Yocum, and R. L. Foster, for appellant.

J. V Spencer and L. B. Smead, for appellee.

BUTLER J. SMITH, MCHANEY and BAKER, JJ., dissent.

OPINION

BUTLER, J.

The plaintiff, R. O. Jenkins, brought suit in the Union Circuit Court against the defendants, Joe H. Myers and the Phillips Petroleum Company for damages for personal injuries. He alleged that he and Joe H. Myers were employed by the Phillips Petroleum Company, and that, while acting in the line of duty and performing work for the company, he was injured on account of the negligence of the said Myers who was assisting him; that Myers was a resident of Union County, Arkansas, and that Phillips Petroleum Company is a foreign corporation. Damages were laid in the sum of $ 75,000.

In apt time the petroleum company filed its petition for removal of the cause to the Federal court. This petition was overruled, and subsequently the company filed an amended petition, which was also overruled and denied. The original and amended petitions, while not denying that Joe H. Myers was in the employ of the petroleum company and assisting plaintiff in his work at the time of his injury, alleged that the charges of negligence against the defendant, all being specifically repeated, were "wrongfully and fraudulently made for the purpose of defeating the jurisdiction of the United States District Court for the Western District of Arkansas, El Dorado Division." It was further alleged that "plaintiff and the defendant, Joe H. Myers, are residents and citizens of the State of Arkansas, and this defendant, Phillips Petroleum Company, is a resident and citizen of the State of Delaware, and the defendant, Joe H. Myers, is wrongfully and fraudulently made a party defendant in this action for the purpose of preventing a removal of this case by the defendant, Phillips Petroleum Company, from the court in which it was filed to the district court of the United States for the Western District of Arkansas, El Dorado Division, and this cause involves a separable controversy."

The petition for removal falls squarely within the rule announced in Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544, and C., R. I. & P. Ry. Co. v. Whiteaker, 239 U.S. 421, 36 S.Ct. 152, 60 L.Ed. 360. "It is not enough," said the court in the last case cited, "to assert that there was a fraudulent joinder of defendants, but there must be 'a statement of facts rightfully engendering that conclusion,' and that '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.' And 'it is not such,' it was said, 'unless it was without any reasonable basis'." The trial court therefore properly denied the petition for removal.

Thereafter the petroleum company filed its separate answer denying the allegations of negligence in the complaint and pleading, as an affirmative defense, that plaintiff assumed the risks of his employment. Joe H. Myers also answered, adopting the separate answer of the petroleum company as his own. The case proceeded to trial upon the issues joined and the evidence adduced. There was a verdict and judgment in favor of plaintiff in the sum of $ 50,000, from which is this appeal.

The petroleum company, in its motion for a new trial, filed approximately sixty-four days after the return of the verdict, raised the question of the constitutionality of § 7137 of Crawford & Moses' Digest, upon which the liability of the petroleum company is predicated. This section abrogates the fellow-servant law in so far as it applies to corporations, and creates liability as to them for injury to employees caused by negligence of fellow-servants. The contention that said act is unconstitutional is one of the grounds urged for a reversal of the judgment. It is the contention of the appellee that this question was waived by the failure of the defendant in the court below to interpose this defense by demurrer, answer, or other appropriate plea. We pass this contention for the reason that this court, in numerous decisions for a period of more than twenty-five years, has upheld the constitutionality of § 7137, supra, the latest expression being in the case of Postal Tel. Cable Co. v. White, ante p. 365.

At the conclusion of the testimony, the defendant moved for a directed verdict on the ground that there was no substantial evidence to sustain the allegation of the complaint as to the negligence of Joe H. Myers. This is the main ground urged for reversal.

The evidence relative to the circumstances out of which the negligence of Joe H. Myers is said to have arisen is in sharp and irreconcilable conflict. That adduced on behalf of the plaintiff tends to establish the following facts: on the date of the injury, plaintiff and Joe H. Myers, his fellow-servant, were engaged in carrying sections of 2 1/2-inch pipe from 31 to 32 feet long of an estimated weight of 250 pounds, plaintiff carrying the front end on his right shoulder and Myers carrying the rear end on his right shoulder. The territory where this work was being done was low and swampy with a good many stumps, and...