Polito v. Molasky

• Decision Date: 26 November 1941
• Docket Number: No. 12063.,12063.
• Citation: 123 F.2d 258
• Parties: POLITO v. MOLASKY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 258 (1941)

POLITO v. MOLASKY et al.

No. 12063.

Circuit Court of Appeals, Eighth Circuit.

November 10, 1941.

Rehearing Denied November 26, 1941.

N. Murry Edwards, of St. Louis, Mo., for appellant.

John S. Marsalek, of St. Louis, Mo. (Will B. Dearing, Theo. J. Krauss, and Moser, Marsalek & Dearing, all of St. Louis, Mo., on the brief), for appellee Merchants Motor Freight, Inc.

Waldo C. Mayfield, of St. Louis, Mo. (Bartley & Mayfield, of St. Louis, Mo., on the brief), for appellee Hervey Williams.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an action commenced March 16, 1940, by the appellant as plaintiff in the Circuit Court of the City of St. Louis, Missouri, against the defendants William Molasky, Dorothy Molasky, and Merchants Motor Freight, Inc. to recover damages in the sum of $45,000 for personal injuries alleged to have been the proximate result of the joint and concurrent negligence of the defendants.

The accident resulting in the injury complained of is alleged to have occurred in the city of St. Louis on January 19, 1940, when an International delivery truck, tractor and trailer operated by the defendants collided with a city fire engine on the rear of which plaintiff was riding, causing plaintiff to be thrown to the street.

On April 1, 1940, the defendant Merchants Motor Freight, Inc., filed its petition and bond in the state court for removal to the federal court on the ground of diversity of citizenship, separable controversy and fraudulent joinder. In the petition for removal it was alleged that plaintiff is a citizen of Missouri; that the petitioning defendant is a citizen and resident of Minnesota; that the defendants Molasky are citizens of Missouri; and, in substance, that the Molaskys were not proper parties in that they had no connection with the accident described in the complaint and were fraudulently joined as defendants.

On April 2, 1940, plaintiff filed an amended petition in the state court making one Hervey Williams a party defendant and causing summons, issued out of the state court, to be served upon him.

On April 3, 1940, an order of removal was entered in the state court and the case was removed to the federal court.

On April 27, 1940, the defendant Merchants Motor Freight, Inc., filed its answer in the district court.

On April 30, 1940, the plaintiff filed his motion to remand the case to the state court, in which motion he traversed the material allegations of the petition for removal. This is referred to in the record as the first motion to remand. There was a hearing on this motion May 6, 1940, and it was by the court overruled.

On May 9, 1940, the plaintiff filed an amended petition in the district court making Hervey Williams a party defendant, and on the same day filed a second motion to remand. As grounds for removal, in addition to those alleged in the first motion, the plaintiff alleged that the defendant Hervey Williams is a citizen of Missouri; and that the defendant Merchants Motor Freight, Inc., has waived any right of removal which it might have had by designating one Richard Phelps of St. Louis as its agent for service of process in Missouri, thereby consenting to be sued in the courts of Missouri.

The court on August 5, 1940, after a hearing, overruled the second motion to remand.

Upon motion of Merchants Motor Freight, Inc., the case was consolidated for trial with the case of Neudeck against the movant and the Molaskys. The trial resulted in a directed verdict for the Molaskys and a verdict of the jury in favor of the defendants Merchants Motor Freight, Inc., and Hervey Williams, upon which verdicts the judgment here appealed from was entered.

In this court the appellant, plaintiff below, contends that the court erred (1) in failing to sustain his first motion to remand; (2) in failing to sustain his second motion to remand; and (3) in ordering the case consolidated for trial with the Neudeck case.

To support the contention that the first motion to remand should have been sustained appellant argues (a) that the petition for removal does not allege facts sufficient to substantiate the conclusion that the Molaskys were fraudulently joined as defendants; (b) that Hervey Williams, an alleged citizen of Missouri, was properly joined as a defendant in the state court; and (c) that Merchants Motor Freight, Inc., failed to sustain the burden of proof cast upon it to establish bad faith and fraudulent joinder.

The law is that where a resident defendant is joined, the joinder, although fair upon its face, may be shown by a petition for removal to be only a sham or fraudulent device to prevent removal; but the showing must consist of a statement of facts rightly leading to that conclusion apart from the pleader's deductions. "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." Chesapeake & Ohio R. Co. v. Cockrell, 232 U.S. 146, 152, 34 S.Ct. 278, 280, 58 L.Ed. 544. See, also, Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144; Leonard v. St. Joseph Lead Co., 8 Cir., 75 F.2d 390; Morris v. E. I. Du Pont De Nemours & Co., 8 Cir., 68 F.2d 788. In the instant case the defendant in its petition to remove alleged "that at the time of the accident referred to in plaintiff's petition filed herein, defendants William Molasky and Dorothy Molasky, or either of them, did not own, operate, control or in any way whatsoever have any connection, legal or otherwise, with the International delivery truck, tractor and trailer referred to in plaintiff's petition filed herein, or the driver thereof, all of which plaintiff, or his attorney of record herein, knew at the time of the institution of this action, or might have readily ascertained."

It is true that these allegations are in the negative; but under the circumstances nothing more could have been alleged. The defendant placed before the court the only facts possible. This identical problem was presented to this court in Leonard v. St. Joseph Lead Co., 8 Cir., 75 F.2d 390, and we there held that the petition for removal was sufficient. That decision is controlling here.

The second argument is likewise without merit. A sufficient petition for removal and bond were filed in the state court on April 1, 1940. The amended petition, attempting to make Hervey Williams a party defendant, was not filed in the state court until the following day. It is familiar law that upon the filing of a proper petition and a legal bond, the suit being removable under the statute, the jurisdiction of the state court absolutely ceased and that of the federal court immediately attached. New Orleans, M. & T. Railroad Co. v. Mississippi, 102 U.S. 135, 141, 26 L. Ed. 96; National Steamship Company v. Tugman, 106 U.S. 118, 122, 1 S.Ct. 58, 27 L.Ed. 87; Manning v. Amy, 140 U.S. 137, 140, 11 S.Ct. 707, 35 L.Ed. 386. It is not even necessary that an order of removal be secured. Kingston v. American Car & Foundry Co., 8 Cir., 55 F.2d 132, 136, and cases cited.

The right of removal could not be affected by the filing of the amended petition in the state court, and the district court did not err in refusing to consider it on the motion to remand. In Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 349, 83 L.Ed. 334, in affirming Jenkins v. Pullman Co., 9 Cir., 96 F.2d 405, the Supreme Court said:

"On appeal, the Circuit Court of Appeals, passing the other questions, held that if it did not sufficiently appear at the time of the petition for removal that the cause was not separable, it did so appear when the second amended complaint was filed and hence that the District Court erred in denying the motion to remand. 96 F.2d page 410. This ruling was placed upon an erroneous ground. The second amended complaint should not have been considered in determining the right to remove, which in a case like the present one was to be determined according to the plaintiffs' pleading at the time of the petition for removal."

It is further argued that at the hearing upon the first motion to remand the defendant did not sustain the burden of proof to establish the fraudulent joinder of the Molaskys as defendants. The burden of proof, it is pointed out, is upon the removing defendant to prove bad faith and fraudulent joinder by clear and convincing evidence. Davis v. Standard Oil Co. of Indiana, 8 Cir., 47 F.2d 48; Leonard v. St. Joseph Lead Co., supra. The evidence introduced at the hearing showed conclusively that the Molaskys had no connection with the accident out of which the alleged cause of action arose nor with the parties involved in it. They knew nothing about it. It appeared also that plaintiff joined them...