Reeves v. American Brake Shoe Co.

Decision Date12 December 1947
Docket NumberNo. 5566.,5566.
Citation74 F. Supp. 897
PartiesREEVES v. AMERICAN BRAKE SHOE CO. et al.
CourtU.S. District Court — Eastern District of Missouri

Jerome A. Gross, of St. Louis, Mo., for plaintiff.

George E. Heneghan, of St. Louis, Mo., for defendants American Brake Shoe Company and Paul Sutter.

HULEN, District Judge.

Plaintiff filed his petition in the State Court for damages. The cause was removed. Plaintiff's motion to remand is before the Court for ruling.

Defendants in the action are American Brake Shoe Company, John Smith and Paul Sutter. Service was not obtained on John Smith and in so far as the present motion is concerned it will be considered as though he were not made a party defendant. Plaintiff and defendant Paul Sutter are residents of Missouri. American Brake Shoe Company is a non-resident corporation. The petition for removal, on the grounds of diversity, alleges a separate controversy between plaintiff and defendant corporation; that the petition does not state a cause of action against defendant Paul Sutter; that Paul Sutter was not joined in good faith as a party defendant but was fraudulently joined to defeat jurisdiction of this Court.

The right to remove is statutory and before a defendant can avail itself of the statutory right it must show upon the record a case which comes within the provisions of the statute. To be removable, under the statute regulating removal in the character of proceeding before the Court, the controversy must be "wholly between citizens of different States, and which can be fully determined as between them". Title 28 U.S.C.A. § 71.

Defendant's position that the petition states, or should legally be construed as stating, a separable controversy, is based upon a claim that the acts complained of by the plaintiff are acts of non-feasance in so far as the defendant Sutter is concerned "and no facts are alleged from which it may be inferred that the individual defendant was guilty of misfeasance." Does the petition state a joint cause of action against the corporate defendant and Paul Sutter?

The petition alleges that the corporate defendant operated a manufacturing plant in St. Louis County and that Paul Sutter was assistant master mechanic and assistant supervisor of maintenance, whose duties were to assist the master mechanic and supervisor of maintenance who was charged with responsibility for the safety of working conditions in the plant and seeing that tools, appliances and equipment "including scaffold boards, were safe and suitable for their intended purpose and uses, and were such as would give proper and adequate protection to persons working thereon." At the time of plaintiff's injury, he was employed by an electrical contractor to install electrical wiring in the corporate defendant's place of business. While engaged in the work of installing wiring he was injured. Such injuries are alleged to have resulted from defendant's retaining control of the area where plaintiff's work was being performed and that the defendants furnished and maintained upon a crane a movable scaffold board for the use of all persons working in the vicinity of said crane, and that the scaffold board was "cross-grained, and contained a knot, and was weak and likely to break and was not a safe, suitable, proper and adequate scaffold board, which defendants and each of them knew, or in the exercise of ordinary care, would have known." The petition alleges that while the plaintiff was carrying on his work in the corporate defendant's place of business and was "using said scaffold board so furnished by defendants, and was standing upon said board and working therefrom the said scaffold board did...

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9 cases
  • Associated Tel. Co. v. Communication Workers
    • United States
    • U.S. District Court — Southern District of California
    • July 21, 1953
    ...instance. John Hancock Mutual Life Ins. Co. v. United O & P Workers, D.C.N.J. 1950, 93 F.Supp. 296, at page 302; Reeves v. American Brake Shoe Co., D.C.Mo.1947, 74 F.Supp. 897. The party who brings the suit is master to decide what law he will rely upon. John Hancock Mutual Life Insurance C......
  • John Hancock Mut. Life Ins. Co. v. UNITED O. & P. WKRS.
    • United States
    • U.S. District Court — District of New Jersey
    • September 9, 1950
    ...strictly and the petition should not be granted if there is doubt as to the right of removal in the first instance. Reeves v. American Brake Shoe Co., D.C., 74 F.Supp. 897; Stangard Dickerson Corp. v. United Electrical R. & M. W., D.C., 33 F.Supp. 449. Cf. Cox v. Gatliff Coal Co., D.C., 52 ......
  • Bradley v. Halliburton Oil Well Cementing Co., Civ. No. 2957.
    • United States
    • U.S. District Court — Eastern District of Oklahoma
    • September 27, 1951
    ...W. Ry. Co., D.C., 226 F. 120; Sullivan v. Lloyd, D.C., 213 F. 275; Siler v. Morgan Motor Co., D.C., 15 F.Supp. 468; Reeves v. American Brake Shoe Co., D.C., 74 F.Supp. 897. There is without doubt merit to the rule; however, there is some authority to the contrary. Strother v. Union Pac. R. ......
  • Tasner v. US Industries, Inc.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 29, 1974
    ...C.I.O., supra, John Hancock Mutual Life Insurance Co. v. United O. & P. Workers, 93 F.Supp. 296 (D.N.J.1950); Reeves v. American Brake Shoe Co., 74 F.Supp. 897 (E.D.Mo., 1947). It is clear to this Court that the defendants have failed in their burden of establishing their right to removal a......
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