Smoot v. Chicago, Rock Island and Pacific Railroad Co., 9135.

Decision Date31 May 1967
Docket NumberNo. 9135.,9135.
Citation378 F.2d 879
PartiesJessie Lucille SMOOT, Administratrix of the Estate of Glenn Jay Smoot, Deceased, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, and Edward Bartholomew, an Individual, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Howard K. Berry, Oklahoma City, Okl. (Fred M. Hammer, Oklahoma City, Okl., with him on the brief), for appellant.

Loyd Benefield, of Savage, Gibson, Benefield & Shelton, Oklahoma City, Okl. (A. Francis Porta, El Reno, Okl., with him on the brief), for appellees.

Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

PICKETT, Circuit Judge.

Glenn J. Smoot was killed in Oklahoma City, Oklahoma, when a car which he was driving collided at a railroad crossing with a freight train belonging to the appellee, Chicago, Rock Island and Pacific Railroad Company. Smoot's widow, as Administratrix of his estate, brought this action for damages in the District Court of Oklahoma County, Oklahoma, against the railroad and Edward Bartholomew, an alleged employee of the railroad. Complete diversity between the plaintiff and defendants did not exist, as Bartholomew was a citizen of Oklahoma. The railroad, nevertheless, removed the case to federal court, alleging that Bartholomew was not an employee and agent of the railroad at the time alleged in the complaint and that his joinder as a defendant in the action constituted "a legal fraud" upon the petitioner and upon the United States District Court for the Western District of Oklahoma. The removal was accompanied by a motion to dismiss the action as to Bartholomew, with his supporting affidavit to the effect that his employment with the railroad had terminated almost fifteen months before the collision and that he was in no way connected with the acts of negligence ascribed to him. A motion to remand stated that the plaintiff had in good faith alleged a cause of action against Bartholomew, but neither the allegations of the removal petition nor the statements in Bartholomew's affidavit were denied. The trial court sustained the motion to dismiss as to Bartholomew and overruled the motion to remand. Thereafter the railroad's motion for summary judgment was sustained and an order entered thereupon.

Relying upon a recent decision of the Supreme Court of Oklahoma, J. C. Penney Co. v. Barrientez, 411 P.2d 841, appellant vigorously contends that the allegations of the complaint were adequate to state a cause of action against Bartholomew and that the motion to remand should have been granted. The Penney case undertook to clarify the existing Oklahoma case law as to the joint liability of an employer and employee for negligence. It holds that if an employer's premises are in the custody and control of an employee who is responsible to his employer for dangerous conditions existing on the premises, then he is liable for injuries to invitees to the same extent as the employer. The issue here, however, is not that of the liability of Bartholomew if he were an employee of the railroad, but whether the allegations of employment were without factual basis and a complete sham. The complaint alleges that Bartholomew "at all times concerned herein, was in the employ of the defendant corporation as supervisor in charge of the installation and maintenance of automatic warning and safety signals * * *"; that he "was responsible for the maintenance, and the proper operation, of the automatic signals" at the crossing where the accident occurred; that "he failed to make reasonable inspection" of the signal system and permitted "it to become defective and out of repair", thereby causing malfunctions which resulted in the collision which caused the death of Smoot. The sole basis for appellant's claim against Bartholomew was his alleged negligence as an employee of the railroad.

The motion to remand and the motion to dismiss were heard at the same time. The record discloses without contradiction that Bartholomew discontinued his employment with the railroad on May 16, 1964 and thereafter had nothing to do with the installation or maintenance of the signal system and had no knowledge of its completion status.

While issues of liability may not ordinarily be determined on a motion to remand, it is well settled that upon allegations of fraudulent joinder designed to prevent removal, federal courts may look beyond the pleadings to determine if the joinder, although fair on its face, is a sham or fraudulent device to prevent removal. Wilson v. Republic Iron 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. In Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85, this court said:

"In many cases, removability can be determined by the original pleadings and normally the statement of a cause of action against the resident defendant will suffice to prevent removal. But upon specific allegations of fraudulent joinder the court may pierce the pleadings, Chesapeake & O. Ry. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544; Nunn v. Feltinton, 5 Cir., 294 F.2d 450; Morris v. E. I. DuPont DeNemours & Co., 8 Cir., 68 F.2d 788, consider the entire record, and determine the basis of joinder by any means available. McLeod v. Cities Serv. Gas. Co., 10 Cir., 233 F.2d 242. The joinder of a resident defendant against whom no cause of action is stated is patent sham, Parks v. New York Times Co., 5 Cir., 308 F.2d 474, and though a cause of action be stated, the joinder is similarly fraudulent if in fact no cause of action exists, Lobato v. Pay Less Drug Stores, Inc., 10 Cir., 261 F.2d 406. This does not mean that the federal court will pre-try, as a matter of course, doubtful issues of fact to determine removability; the issue must be capable of summary determination and be proven with complete certainty. McLeod v. Cities Serv. Gas. Co., supra."

The non-liability of Bartholomew having been established with complete certainty upon undisputed evidence, it was then subject to summary determination, and, as said in Dodd v. Fawcett Publications, Inc., supra, 329 F.2d at p. 85, his "continued joinder serves only to frustrate federal jurisdiction. In such case the joinder is fraudulent." We find no error in overruling the motion to remand, or in sustaining the motion to dismiss as to Bartholomew, which was treated as a motion for summary judgment. Rule 12(b), F.R.Civ.P.

It is alleged in the complaint that at 7:30 A.M. on August 6, 1965, Smoot was driving his automobile in a northerly direction on a four-lane highway near Oklahoma City, Oklahoma when the vehicle collided with an eastbound train of the defendant at an intersection of the highway and the railroad tracks, resulting in Smoot's death. Numerous acts of negligence on the part of the railroad are alleged to have caused the collision.1

The railroad's motion for summary judgment establishes without contradiction that when the collision occurred the train was traveling at from 45 to 50 miles per hour, and that the front end of the engine had already crossed the...

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