Sears v. Atchison, Topeka & Santa Fe Railway Company

• Decision Date: 13 May 1912
• Parties: SQUIRE A. SEARS, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Appellants
• Court: Kansas Court of Appeals

147 S.W. 860

163 Mo.App. 711

SQUIRE A. SEARS, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Appellants

Court of Appeals of Missouri, Kansas City

May 13, 1912

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Thos R. Morrow, John H. Lathrop, Henry N. Ess, Jr., Jas. P Gilmore and Robertson & Robertson for appellant.

(1) A sufficient petition and bond for removal having been filed in due time by The Atchison, Topeka & Santa Fe Railway Company it was the duty of the court below to proceed no further, except to make an order or removal, and all subsequent proceedings were coram non judice. Wecker v. Enameling Co., 204 U.S. 176; Donovan v. Wells Fargo & Co., 169 F. 363; Hunter v. Railroad, 188 F. 645; Shaver v. Milk Co., 185 F. 316; Reinartson v. Railroad, 174 F. 707; McAlister v. Railroad, 157 F. 740; Railroad v. McCabe, 213 U.S. 207. (2) After the evidence had all been introduced, and, at the close thereof, when the trial court directed the jury to return a verdict for the defendant, Wabash Railroad Company, and it returned such verdict, and said railroad company ceased to be a party to the suit, the case immediately then became one between the plaintiff and the defendant, The Atchison, Topeka & Santa Fe Railway Company alone, and, for the first time, became removable on diversity of citizenship alone, aside from separable controversy, and a sufficient petition and bond for removal having been filed at that time by the defendant, The Atchison, Topeka and Santa Fe Railway Company, the court should then have ordered the case removed to the proper Federal court. See authorities under point one; Powers v. Railroad, 169 U.S. 92; Remington v. Railroad, 198 U.S. 95; Fritzlen v. Boatmen's Bank, 212 U.S. 364; Guarantee Co. v. Hanway, 104 F. 369; Bailey v. Mosher, 95 F. 223. (3) In any view of the case, upon the entire record the plaintiff is not entitled to recover in this case. There was no obligation on the employees of the appellant's train to flag the Wabash train which plaintiff was running as an engineer, and, even if the court should hold such duty did exist, and that there was a failure to perform it (which we deny), yet plaintiff was guilty of such contributory negligence himself that a recovery can not be had, notwithstanding any negligence there may have been in the preceding train not flagging his. Mason v. Railroad, No. 10095; Rinard v. Railroad, 164 Mo. 270; Railroad v. Hooker, 170 F. 154; Railroad v. Ship, 174 F. 353; Brown v. Railroad, 44 Wash. 1, 86 P. 1053; Whalen v. Railroad, 114 Mich. 512, 72 N.W. 323; Enright v. Railroad, 93 Mich. 409, 53 N.W. 536.

M. J. Lilly and Phillips & Phillips for respondent.

(1) The petition alleged a joint cause of action, and defendant was not entitled to removal, and defendant's right to remove depends upon plaintiff's petition. Railroad v. Willard, 220 U.S. 413; Wilson v. Oswego Township, 151 U.S. 56; Railroad v. Miller, 217 U.S. 209; Lanning v. Railroad, 196 Mo. 647; Stotler v. Railroad, 200 Mo. 107; Schwyart v. Barrett, 145 Mo.App. 347; Gold Company v. Keys, 96 U.S. 99; Bank v. Ford, 114 U.S. 635. (2) The liability of defendant, both as alleged and as proven, was joint. R. S. 1909, sec. 3079; Railroad v. Willard, 220 U.S. 413; Johnson v. Railroad, 203 Mo. 381; Railroad v. Breedens Admx. (Ky.), 64 S.W. 667; Clark v. Geer, 86 F. 451. (3) The fact that the court directed a verdict in favor of the resident, defendant, does not make the cause removable. Lathrop, Shea & Henwood Co. v. Const. and Imp. Co., 215 U.S. 246; Railroad v. Thompson, 200 U.S. 206; Railroad v. Scheegog, 215 U.S. 308. (4) If made jointly liable by statute they may be held without pleading the statute. Blair v. Heibel, 103 Mo.App. 633; Bowen v. Railroad, 118 Mo. 547; Camp v. Railroad, 94 Mo.App. 280. (5) An allegation that resident and nonresident tortfeasors are sued for the purpose of preventing removal to the Federal court is not a sufficient allegation that the joinder was fraudulent. Railroad v. Sheegog, 215 U.S. 308; Schwyart v. Barrett, 145 Mo.App. 332.

OPINION

ELLISON, J.

Plaintiff was an employee of the defendant Wabash Railway Company in the capacity of an engineer on one of its engines. He suffered personal injury in having one of his legs broken, by reason, as he charges in his petition, of the joint negligence of the Wabash Company and the other defendant, the Atchison, Topeka & Santa Fe Railway Company. There was a judgment for plaintiff in the trial court.

The petition charges the companies with operating lines of railway in this state. It then charges that these companies were "engaged jointly in operating their said railroads over joint track from Carrollton to Camden." It is then charged that plaintiff, while engaged as engineer in the service of the Wabash Company in pulling a train "over said joint tracks from Carrollton to Camden," said engine, by the negligence and "wrongful act and conduct of said defendants, their agents, servants, employees and officers, without fault on plaintiff's part, collided with a caboose or rear end of another train on said defendants' joint track in the possession of and under the control of defendants, and the two trains then and there . . . collided, and by reason of said impending collision plaintiff was placed in a position of great and imminent danger and in order to save himself from death or great bodily harm, jumped from said engine," whereby he was greatly injured. The petition then charges that his injuries were caused "by the negligence of defendants" and their agents, etc., in charge of the train with which the engine he was operating, collided, "in leaving said engine standing on said joint tracks without sending a flagman back with stop signals to warn plaintiff of the presence of said train on said joint tracks."

The Wabash Company is a resident corporation of Missouri and the Santa Fe is a resident corporation of Kansas. The latter company filed a motion to remove the cause to the United States Circuit Court on the ground of non-citizenship in this state, and that the cause of action was not joint and that the Wabash Company had been made a party and charged with joint liability with the fraudulent purpose of depriving it of the right to have the cause determined in the Federal court, thereby defeating that court of its proper jurisdiction. The petition for removal further stated that the matters set up in plaintiff's petition purporting to show a joint cause of action were false and known to be so when pleaded. It then proceeds to state what defendant states are the facts of the case, known to plaintiff, which show there was no joint cause of action.

If a non-resident is sued in a state court, he has a right to have the cause removed to the Federal court unless there is joined with him one or more defendants who are residents of the state. If that is done, as, for instance, in cases of joint liability, there is no right of removal. But if the joinder is fraudulently made and a joint cause of action untruly and fraudulently charged, for the purpose of depriving the Federal court of jurisdiction, it will not be allowed that effect and a removal will be had on the petition of the non-resident.

How and where are these matters to be determined? The character of the action is, in the first place, judged by the claim the plaintiff, in good faith, makes in his petition. The Supreme Court of the United States has said that "A defendant has no right to say that an action shall be several which the plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to a final decision in his own way. The cause of action is the subject-matter in controversy, and that is for all purposes of the suit, whatever the plaintiff declares it to be in his pleading." [Powers v. Chesapeake & Ohio Ry Co., 169 U.S. 92, 42 L.Ed. 673, 18 S.Ct. 264; Alabama Southern Ry. v. Thompson, 200 U.S. 206, 50 L.Ed. 441, 26 S.Ct. 161; Chicago, B. & Q. Ry. Co. v. Willard, 220 U.S. 413, 55 L.Ed. 521, 31 S.Ct. 460.] In the last two cases it is said that in determining the right of removal, "the law looks to the case made in the pleadings, and determines whether the state court shall be required to surrender its jurisdiction to the Federal court." Therefore, if the petition for removal, together with the face of the record down to the time it is filed, presents a mere question of law, the state court may decide the question in favor of its own jurisdiction and proceed to judgment; leaving the non-resident his proper remedy by way of after application to the proper Federal court. [Burlington Ry. Co. v. Dunn, 122 U.S. 513, 30...