Rhodes v. Dierks Lumber & Coal Co.

• Decision Date: 23 January 1940
• Docket Number: No. 11568.,11568.
• Citation: 108 F.2d 846
• Parties: RHODES v. DIERKS LUMBER & COAL CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

108 F.2d 846 (1940)

RHODES v. DIERKS LUMBER & COAL CO. et al.

No. 11568.

Circuit Court of Appeals, Eighth Circuit.

January 23, 1940.

Osro Cobb, of Little Rock, Ark. (C. E. Johnson, of Little Rock, Ark., on the brief), for appellant.

Charles E. Whittaker, of Kansas City, Mo. (Henry N. Ess, Carl E. Enggas, and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for appellees.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from a judgment entered upon a verdict directed for the defendants in an action for damages for personal injuries against Dierks Lumber & Coal Company and O. B. Echols jointly. The only error assigned is the denial of plaintiff's motion to remand the cause for trial to the Circuit Court of Garland County, Arkansas, from which it was removed on petition of the defendant Dierks Lumber & Coal Company, the non-resident defendant.

The petition for removal alleged a separable controversy and charged fraudulent joinder. The motion to remand traversed the averments of the petition. It is admitted, by implication at least, that there was no actual bad faith on the part of the plaintiff in joining Dierks Lumber & Coal Company and Echols as parties defendant in the complaint. The contention relied upon by appellee is that the complaint does not state a cause of action against Echols, the resident defendant.

It is the law that the joinder of a resident defendant with a non-resident defendant is fraudulent, if it is clear that under the law of the state in which the action is brought, the facts alleged by the plaintiff as the basis for the liability of the resident defendant could not create a joint liability against him and his co-defendant, so that the assertion of a joint cause of action is as a matter of local law plainly sham and fraudulent. Leonard v. St. Joseph Lead Co., 8 Cir., 75 F.2d 390, 394; Morris v. E. I. Du Pont De Nemours & Co., 8 Cir., 68 F.2d 788, 793.

The complaint filed in the state court alleged that the plaintiff and the defendant Echols are citizens of Arkansas and that the defendant Dierks Lumber & Coal Company is a Delaware corporation doing business in Arkansas; that the corporation is engaged in the manufacture of lumber and the operation of a system of railroads and logging cars in Arkansas; that Echols was employed by the corporation as foreman and master mechanic in charge of the corporation's railroad shops in which the plaintiff was employed as a car knocker under the control and supervision of Echols; and that it was the duty of the plaintiff to repair damaged cars and equipment brought into the roundhouse for that purpose, the work being of a skilled character requiring experience to perform it with safety. On October 24, 1936, the plaintiff was instructed to replace a broken draw-head coupler in a crippled car. The coupler weighed about 415 pounds, was about 5 feet long, was made of steel and iron, and had a large head at one end. Owing to the weight of the coupler two men were required for the work, and in order to move it they lifted one end around at a time. Echols, as foreman and agent of the company, negligently assigned one Norwood to assist plaintiff in replacing the coupler. While engaged in this work, due to the negligence of Norwood, the plaintiff received an injury for which he demanded a joint judgment against the corporation and Echols.

The grounds of negligence charged were (1) that Echols, agent of the corporation, was negligent in employing and furnishing to the plaintiff as his co-worker, Norwood, whom he knew "to be untrained, inexperienced and unqualified to perform the character of duties to which he was assigned with the plaintiff" (2) "without advising, instructing or warning the plaintiff of the inexperience and inability of" Norwood. It is further alleged that except for such joint negligence of the defendants the injuries and damages complained of would not have occurred.

The evidence taken at the hearing on the motion to remand disclosed that two experienced men are enough to handle drawhead couplers; that on October 24, 1936, Norwood and plaintiff took the damaged draw-head coupler out of the car and rolled it down the embankment; that a good order coupler was about 8 or 9 feet from the track and on an incline to the track; and that Norwood and plaintiff were preparing to carry it to the right in order to insert it in its position in the car when plaintiff caught hold of the head end of the coupler which weighed about 300 pounds and Norwood caught hold close to his left. Just as they were straightening up Norwood let loose without giving any warning and plaintiff caught the coupler with a jerk and held on to prevent crushing his feet. After the accident occurred Norwood said he was afraid his hands...