Southern Pac. Co. v. Haight

• Decision Date: 16 May 1942
• Docket Number: No. 9775.,9775.
• Citation: 126 F.2d 900
• Parties: SOUTHERN PAC. CO. v. HAIGHT.
• Court: U.S. Court of Appeals — Ninth Circuit

126 F.2d 900 (1942)

SOUTHERN PAC. CO. v. HAIGHT.

No. 9775.

Circuit Court of Appeals, Ninth Circuit.

April 2, 1942.

Rehearing Denied May 16, 1942.

COPYRIGHT MATERIAL OMITTED

George R. Freeman, of Willows, Cal., and Horace B. Wulff and Devlin & Devlin & Diepenbrock, all of Sacramento, Cal., for appellant.

M. Mitchell Bourquin, of San Francisco, Cal., and Carter, Barrett & Carlton, of Redding, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

It is alleged in a complaint filed in the Superior Court of the State of California that the plaintiff sustained serious physical injuries in a collision occurring at an intersection of railroad tracks and a public highway in California between an automobile in which plaintiff was riding as a guest passenger and a freight train owned and operated by the Southern Pacific Company, a corporate resident of Kentucky. The action is for compensatory damages and is laid against the named company and two fictitiously named operating employees of the company who are alleged to be residents of California.

The acts of negligence alleged are that there was a failure to maintain at or near the intersection of the railroad tracks and the highway any electric bell or light or gate or other mechanical signal or warning sign; and a failure to provide lights on the railroad cars that obstructed the highway; and a failure to give any signal or warning of the presence of the train on the crossing. The injuries to the plaintiff are alleged to have been caused by the negligence of the defendant Southern Pacific Company in the manner in which it maintained and operated the intersection and the negligence of the employee defendants in failing to provide warning or other notification of the presence of the railroad cars on the intersection.

It is clear that the plaintiff stated a joint cause of action against the Railway Company and the employee defendants, under the rule laid down by this Court in Cheyne v. Atchison, Topeka & Santa Fe Railway Co., 9 Cir., January 22, 1942, 125 F.2d 49, and cases therein cited.

The summons and complaint were served on the company on February 20, 1936, and thereafter this defendant filed its answer in the state court. On September 1, 1937, the plaintiff served and filed a memorandum to set the cause for trial and on the 30th day of September, 1937, the cause was set down by the state court to be tried on the 1st day of February, 1938, and regularly continued to February 8, following.

Upon the later date, the case was called for trial in the state court, without any service of process having been made on the fictitious resident defendants. Nor had these fictitious defendants made any appearance in the cause. After a preliminary statement by the court, and prior to the roll call or empanelment of the jury, counsel for the defendant Company asked plaintiff's counsel, "Are you ready to go ahead, Mr. Carter?", to which question plaintiff's counsel responded, "We are ready, yes".

Whereupon counsel for the Company served and filed a petition for removal of the cause to the United States District Court, together with a bond on removal. There is no bad faith claimed and the sole ground for removal is best stated by quoting from Company's petition:

"By announcing themselves as ready for trial, without service of summons and complaint upon said fictitiously named defendants, plaintiffs thereby voluntarily elected to proceed with the case against the Southern Pacific Company alone, and such election amounts to a complete severance of the action as to the non-resident defendant Southern Pacific Company, petitioner herein, as effectively as if it had been originally brought against such defendant alone.

* * *

"Upon the announcement by said plaintiffs of their election to proceed with the trial, as aforesaid, said action, which, prior and up to the time of said announcement, had not been removable to a United States District Court, thereupon and for the first time and forthwith from the time of said announcement, became removable to the proper United States District Court upon the ground that then and there, there existed, and still exists, a separable controversy between the resident plaintiffs, and non-resident defendant Southern Pacific Company, your petitioner, and upon the further ground that said announcement by said plaintiffs was a complete severance of the action as to the non-resident defendant Southern Pacific Company, your petitioner, and so far as it is concerned, converted said action into a separate action against said defendant Southern Pacific Company as effectively as if said Southern Pacific Company had originally been made the sole defendant. . ."

Plaintiff's counsel vigorously opposed removal, and after argument the State Court denied the petition, and granted plaintiff leave to withdraw her election to proceed with the trial.

The next day the plaintiff served one Charles Poley, sued by a fictitious name, and ten days later Poley filed an appearance in the cause.

On February 28, 1938, the Company served on the plaintiff notice that the cause had been removed to the United States District Court and thereafter plaintiff moved in said United States District Court that the cause be remanded to the State Court, and the motion was denied.

The case proceeded to trial in the District Court, and judgment was made and entered against the Railway Company for $18,500 damages and costs of suit. There has never been a dismissal of the resident defendants sued under fictitious names.

The matter is now before us upon appeal by the Company from the judgment upon several assignments of error, but a jurisdictional question is immediately before us. The point is whether the defendant Southern Pacific Company was entitled to remove the cause to the District Court. See our opinion in Cheyne v. Atchison, Topeka & Santa Fe Railway Co., supra and cases therein cited.

In determining the question of removability, we must look at the situation as it existed at the time the petition for removal was presented in the State Court. In the case of Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U.S. 239, 244, 25 S.Ct. 251, 253, 49 L.Ed. 462, the Supreme Court laid down the following rules relative to the removal of causes:

"1. If a case be a removable one that is, if the suit, in its nature, be one of which the circuit court could rightfully take jurisdiction, then, upon the filing of a petition for removal, in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it is pending will lose jurisdiction to proceed further, and all subsequent proceedings in that court will be void. citing cases.

"2. After the presentation of a sufficient petition and bond to the state court in a removal case, it is competent for the circuit court, by a proceeding ancillary in its nature — without violating § 720 of the Revised Statutes (28 U.S.C.A. § 379), forbidding a court of the United States from enjoining proceedings in a state court — to restrain the party against whom a cause has been legally removed from taking further steps in the state court. citing cases.

"3. It is well settled that if, upon the face of the record, including the petition for removal, a suit does not appear to be a removable one then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made."

Consequently, if, when the plaintiff announced that she was ready to proceed with the trial of the cause against the Southern Pacific Company, without serving the fictitious defendants, the right to remove the proceedings to the District Court had accrued, then the action of the State Court in granting the plaintiff leave to withdraw her election to proceed, after the defendant had filed his removal petition and bond could have no effect, and could not serve to render the cause non-removable.

Nor could the service of the summons and complaint on Charles Poley the next day serve to oust the District Court of jurisdiction to proceed, if the cause was properly removed by the action of defendant in filing his petition and bond. Where a case has been properly removed, jurisdiction over it will not be defeated by later changes or developments in the suit, such as changes in citizenship, in parties, in the amount involved or in the cause of action pleaded. Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Stewart v. Dunham, 115 U.S. 61, 5 S.Ct. 1163, 29 L.Ed. 329; Phelps v. Oaks, 117 U.S. 236, 6 S.Ct. 714, 29 L.Ed. 888; Daland v. Hewitt Soap Co., D.C., 27 F.Supp. 482.

The question therefore narrows itself down to a determination of whether or not plaintiff's voluntary action in the State Court constituted in effect a severance of the cause of action as to the Southern Pacific Company. In Powers v. Chesapeake & Ohio R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673, it was held that a cause not removable when originally filed in the State Court may thereafter become removable by the discontinuance of the action against the resident defendants. The recital of facts in that case, however, disclose that the "discontinuance" was by a dismissal of the complaint as to these defendants. The cited case is therefore not fully determinative of the question before us.

A situation similar to the situation before us was presented in Berry v. St. Louis & S.F.R. Co., C.C., 118 F. 911, pages 913, 914, and in a well reasoned opinion the Court said:

"In the case at hand the plaintiff abandoned her right to a joint judgment by demanding a trial as to one defendant in the absence of service upon the other. The course of trial and the character of the verdict and judgment in a joint action render any other conclusion impossible. * * *

"Even if the plaintiff subsequently persisted in her pursuit of the Memphis Company, and the court finally succeeded in acquiring...