Southern Ry. Co. v. Sittasen

• Decision Date: 31 May 1905
• Docket Number: No. 5,222.,5,222.
• Parties: SOUTHERN RY. CO. v. SITTASEN.
• Court: Indiana Appellate Court

74 N.E. 898

SOUTHERN RY. CO.

v.SITTASEN.

No. 5,222.¹

Appellate Court of Indiana, Division No. 2.

May 31, 1905.

Appeal from Circuit Court, Crawford County; C. W. Cook, Judge.

Action by Claude A. Sittasen against the Southern Railway Company and others. From a judgment for plaintiff, defendant Southern Railway Company appeals. Affirmed.A. P. Humphrey, John D. Welman, M. W. Fields, and J. L. Suddath, for appellant. Cox & Armstrong and Elliott, Elliott & Littleton, for appellee.

ROBY, J.

Action by appellee to recover damages alleged to have been caused by the negligence of the defendants, the Southern Railway Company of Indiana, the Southern Railway Company, Cyrus Winkler, and Wallace Jeffers. Appellant appeared and filed a petition and bond praying the removal of the cause, as to it, to the Circuit Court of the United States for the District of Indiana, on the ground of diverse citizenship and separable controversy. The court approved the bond, but overruled the petition. Separate demurrers were filed by the defendants to each of the two paragraphs of complaint- sustained as to Winkler and Jeffers, and overruled as to the corporation defendants, who answered in general denial. The issue was submitted for trial by a jury, and upon the close of appellee's evidence the appellant again filed its petition for removal; renewing its former application, and averring further facts transpiring after action by the court tending to show fraud in joining defendants against whom he knew no cause of action existed, for the purpose of ousting federal jurisdiction. This petition was also overruled. The evidence concluded, a verdict directed in favor of the Southern Railway Company of Indiana, and a verdict returned against appellant, judgment was rendered upon this verdict against it for $10,000, from which it appeals.

The first assignment of error is that the court erred in overruling appellant's petition to remove said cause to the United States Court. Appellee insists that the action of the court in overruling said motion should have been stated as ground for a new trial, and error assigned upon the action of the court in refusing to grant such trial. The rule as stated is established by the authorities, not without conflict, when the error relied upon relates to an application for change of venue. Citizens' St. R. R. Co. v. Shepherd, 29 Ind. App. 412-424, 62 N. E. 300. No case is cited applying this practice to rulings upon petitions to remove, and a direct assignment of error is therefore held to legally as well as logically present the question.

Appellee further insists that the petition and bond are not before this court, not having been made part of the record by a bill of exceptions; citing American Carbon Company v. Jackson, 24 Ind. App. 390, 56 N. E. 862, decided March 28, 1900. Under the act of 1903, the rule as declared in the above-cited case no longer obtains. Acts 1903, p. 338, c 193.

The defendants Winkler and Jeffers were averred to be citizens of this state, in appellant's employment as section foremen, charged with the duty of repairing the defects in the railway tracks hereafter referred to. The statement in the petition to remove that they were fraudulently joined with the petitioner for the purpose of preventing a removal is of no importance. If the plaintiff had the right to bring the joint action, his motive in so doing is immaterial. Charman v. Lake Erie, etc., Co. (C. C.) 105 Fed. 449-451.

In determining whether the action was properly brought against the joint defendants, the law of the state governs. Chesapeake, etc., Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121; Helms v. Northern Pacific Ry. Co. (C. C.) 120 Fed. 398; Charman v. Lake Erie, etc., supra; Batey v. Nashville, etc. (C. C.) 95 Fed. 368.

Whether a joint right of action exists is, for the purpose of the petition, determined from the face of the complaint. Louisville, etc., v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63;Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528.

A corporation acts only through its agents, for whose negligence it is liable, and who may be jointly sued with it. Hoosier Stone Co. v. McCain, 133 Ind. 231, 31 N. E. 956;Wright v. Compton, 53 Ind. 337.

When it is charged that the facts upon which such joint action depends do not exist, and that the averments relative to them are false, known to be false by the plaintiff, and made for the fraudulent purpose of preventing the acquirement of jurisdiction of the federal court, the state court must accept such averments and sustain the petition. The truth of the issue of fraud thus made can be tried in the federal court upon a motion to remand. Dillon on Removal of Causes, 191; Moon on Removal of Causes, -.

The averments of fact which are declared to be false and fraudulent are that defendants Winkler and Jeffers were employed by the “defendants,” they were charged with the duty of straightening the track, and that plaintiff was in the employment of “defendants”; the truth being averred to be that said defendants and the plaintiff were employed by the appellant, and that Winkler and Jeffers were not charged with said duty. Eliminating the averments thus assailed, the complaint still states a cause of action. It is averred in both paragraphs that the Southern Railway Company of Indiana is a corporation organized under the laws of Indiana, and the owner of a line of railway extending across the state; that the Southern Railway Company, appellant, is a corporation organized under the laws of Virginia; that it runs, controls, and operates a line of railway from Louisville to St. Louis, and that in 1890 the Southern Railway Company of Indiana leased to appellant the right to run and operate a line of railway over and upon said track, which appellant was doing at the time of the accident complained of; that appellee was in the employment of the appellant company as a locomotive engineer; and that the engine he was running at the time he received the injuries complained of jumped from the track at a place named, inflicting said injuries, which are specifically set out. It is also averred that the track at said place was negligently constructed and maintained, in that there was a fill 40 feet high and 600 feet long, which was made in 1899; that prior thereto there was a wooden trestle across the ravine, on account of which said fill was necessary, and that such fill was made with dirt, rock, and débris, which were put in and around said trestle, the timbers thereof being left standing; that such material was placed loosely therein, and that it continued to settle, leaving large holes in the track, thereby weakening the same; that said track was constructed on a curve, contained several reverse curves, which were too short to allow safe operation of the road, and likely to cause large locomotive engines to leave the track; that the cross-ties were old, rotten, and defective, and would not hold spikes; that there was at said place a low joint in the rails of the track; that because of such facts the track separated, and derailed the engine run by plaintiff as aforesaid. It is averred also that such defects were known to both companies, and that appellant was negligent in taking the lease, in suffering the condition to continue, and in running an extraordinarily heavy engine over such defective track. If these averments were sufficient as against the lessor company, the petition to remove was correctly denied. There is some conflict in the cases as to...