Rodgers v. Gaines Brothers Company, a Corp.

• Decision Date: 03 May 1927
• Citation: 295 S.W. 492,220 Mo.App. 876
• Parties: WESLEY RODGERS, RESPONDENT, v. GAINES BROTHERS COMPANY, A CORPORATION, APPELLANT, AND JOHN BLAIR, DEFENDANT.
• Court: Missouri Court of Appeals

295 S.W. 492

220 Mo.App. 876

WESLEY RODGERS, RESPONDENT, v. GAINES BROTHERS COMPANY, A CORPORATION, APPELLANT, AND JOHN BLAIR, DEFENDANT.

Court of Appeals of Missouri, St. Louis

May 3, 1927

Appeal from the Circuit Court of Franklin County.--Hon. R. A Breuer, Judge.

AFFIRMED.

Judgment affirmed.

John T Sluggett, Jr. and F. W. Jenny for appellant.

In an action in a State court at a time when by the laws of the State in which the case is pending a defendant who has been served with summons and a copy of the petition is required to answer or plead the persons named as codefendants in the complaint, but who have not been served with summons, are not parties to the cause whose presence will prevent the removal on the ground of diversity of citizenship of the defendant served, and the defendant served may lawfully remove the case to the Federal court on his own petition and bond without any petition, application or action by the defendant not served. Community Building Co. v. Maryland Casualty Co., 8 F. 2nd Series, 678; Hunt v. Pierce et al., 284 F 321; Fallis v. McArthur, Fed. Cas. No. 4627; Tremper v. Swabacher (C. C.), 84 F. 413, 415, 416; Bowles v. H. Z. Heinz Co. (C. C.), 188 F. 937, 928; Carlisle v. Sunset Telephone and Telegraph Co. (C. C.), 116 F. 896. Section 3 of the Judiciary Act, August 13, 1888, C. 866, 25 Stat. 435 (U. S. Comp. St. 1901, p. 510), according to its clear import and as uniformly interpreted by the Supreme Court, authorizes the removal of a cause from a State court to the proper Federal court upon the filing of a petition disclosing the right to remove and the giving of the prescribed bond. Upon the filing of such petition it becomes a part of the record, and if on the face of the record so constituted a suit appears to be removable the state court in which the petition is filed is bound to surrender its jurisdiction and proceed no further. Such a petition presents, for the consideration of the state court, a question of law only, whether assuming the facts stated in the petition to be true, the face of the record discloses a removable cause under the law. Donovan v. Wells Fargo, 169 F. 363; Insurance Co. v. Pechner, 95 U.S. 183, 195; Stone v. So. Carolina, 117 U.S. 430; Carson v. Hyatt, 118 U.S. 279; Carson v. Dunkam, 121 U.S. 421; Burlington Ry. v. Dana, 122 U.S. 513; Crehon v. Ohio, etc., Ry., 131 U.S. 240; Traction Co. v. Mining Co., 196 U.S. 239. A defense in the State court after denial of petition for removal does not constitute a waiver of right to removal Queensboro, etc., v. Kelly, 15 Fed. Advance Sheets, 2nd Series, 395.

W. L. Cole, Virginia J. Booth and James Booth for respondent.

(1) Errors assigned in motions for new trial and in arrest, not preserved in appellant's brief and argument, are waived. Sitts v. Daniel, 284 S.W. 857; Springfield Crystallized Egg Co. v. Refrigerating Co., 259 Mo. 664; Pollard v. Carlisle, 218 S.W. 921; Severson v. Dick, 216 Mo.App. 572; Burton v. Maupin, 281 S.W. 83. (2) The trial court did not err in denying the petition for removal. The controversy was not wholly between citizens of different States; defendant Blair was a resident of Missouri, and not alleged to be a nonresident in the petition for removal (section 1010, U. S. Compiled Statutes 1918). And where the sole ground of removal is that the only controversy is between citizens of different States, the preponderance of authority supports the proposition that all the parties named in plaintiff's pleading who are on the opposite side of the controversy to him must join in the application (34 Cyc. 1281). And the fact that one of defendants has not been served will not obviate the necessity of his joinder in the petition for removal. (See cases cited Note 24, 34 Cyc. 1281.) And to the same effect is McNaul v. Securities Corporation, 178 F. 308; Bowles v. Heintz, 188 F. 937; Powell v. Ry. Co., 294 F. 292.

BENNICK, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.--

This is an action for damages for personal injuries, sustained by plaintiff on May 19, 1926, while in the employ of Gaines Brothers Company. The verdict of the jury was in favor of plaintiff, and against Gaines Brothers Company, in the sum of $ 5000, and from the judgment rendered thereon the latter has appealed.

Plaintiff's petition was filed on June 17, 1926, and on the same day summons was issued for appellant, and for one John Blair, also named a party defendant, returnable to the August, 1926, term of court. Summons was duly served upon appellant, but no service was had upon Blair.

On August 2, 1926, being the first day of the August term of court, appellant filed a duly verified petition for removal of the cause to the District Court of the United States within and for the Eastern Division of the Eastern Judicial District of Missouri, together with a bond in the sum of $ 500, with good and sufficient surety. The petition was in approved form, and for ground for removal set up diversity of citizenship, in that plaintiff was a citizen of the State of Missouri, and appellant a corporation organized and existing under and by virtue of the laws of the State of Oklahoma and a citizen of said State. There was a further allegation that the defendant Blair was not a resident or citizen of Franklin County, within the State of Missouri; that process had not been served upon him; that he had not entered his appearance in the cause; and that the court had no jurisdiction over him.

Thereafter, and on the same day, plaintiff filed an amended petition again designating Blair as a party defendant. On August 5th, appellant's petition for removal was denied by the court, to which ruling exception was taken and duly preserved by appellant in a term bill of exceptions. On August 17th, appellant filed its answer, and on the same day the cause was tried, resulting in a verdict and judgment, as we have indicated above. During the taking of defendant's evidence, plaintiff voluntarily dismissed the case as to defendant Blair.

Plaintiff's petition alleged that plaintiff was engaged in the work of constructing a State highway; that it was the duty of plaintiff to drive a dump wagon, under the directions of defendant's foreman, Blair, and that he was injured by reason of the negligence of defendants, in the following particulars (which were submitted to the jury): First, in ordering and directing plaintiff to drive and dump said wagon at a place known by defendants to be dangerous and unsafe; and, second, in furnishing a dump wagon to plaintiff which was not provided with brakes, and was dangerous and unsafe.

The answer of appellant was a general denial, coupled with pleas of contributory negligence and assumption of risk.

While the reply is not set out in the abstract of the record, it appears that the case was tried as though the new matter in the answer was at issue.

The evidence disclosed that the dump wagon which had been furnished plaintiff by appellant was drawn by three mules. Upon the occasion in question, after the wagon had been loaded by a steam shovel, plaintiff drove along the dump, which was ten or twelve feet high, to a point where his foreman, Blair, directed that he should drive down the slope and dump his load. It appears that the slope was covered with large rocks, and in driving down the same, the wagon (which was not equipped with a brake) pushed down upon the mules, causing them to lunge forward. Plaintiff was thrown from the wagon thereby, and one of the wheels ran over his head, entirely severing his right ear, and bruising his head, right arm, and right leg. The evidence disclosed that, by reason of the accident, his hearing was impaired, and he was caused to suffer from headaches and sleeplessness.

The first and principal contention of appellant is that the court erred in denying its petition for removal after such petition (together with bond and proof of service of notice of its intention to file such petition and bond) had actually been filed and presented to the court below. In the consideration of this question we may concede, as we have indicated elsewhere, that appellant's petition and bond were in proper form, and that same were duly filed by it at the time when it was required by the statutes and rules of court to appear and plead to plaintiff's petition. The petition for removal counted solely upon diversity of citizenship between plaintiff and appellant as the ground for removal, and the purport of same was wholly to disregard the resident, Blair, as a defendant in the case, inasmuch as no service had been had upon him.

The removal statute provides that any suits of a civil nature, at law or in equity, of which the district courts of the United States have jurisdiction, and which are brought in any State court, may be removed into the district courts of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State. [Judicial Code U.S. sec. 28 (U. S Comp. St. 1916, sec. 1010).] In the construction of this statute, it has been held that an action cannot be removed from a state to the federal court on the ground of diversity of citizenship, where there is no separable controversy, unless all the defendants join in the petition for removal, and are all nonresidents of the State in whose court the action was originally brought. [Chicago, R. I. & P. Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Cochran v. Montgomery County, 199 U.S. 260, 270, 26 S.Ct. 58, 50 L.Ed. 182; Fletcher v. Hamlet, 116 U.S. 408, 410, 6 S.Ct. 426, 29 L.Ed. 679; Highway Construction Co. v. McClelland, 14 F.2d 406; McCaffrey v. Wilson & Co., 10 F.2d 368; Blackburn v. Blackburn, 142 F. 901; Casey v. Baker, 212 F. 247; McNaul v. West Indian Securities...