Sperry v. Wabash R. Co.

• Decision Date: 08 November 1943
• Docket Number: No. 352-D.,352-D.
• Citation: 52 F. Supp. 337
• Parties: SPERRY v. WABASH R. CO. et al.
• Court: U.S. District Court — Eastern District of Illinois

52 F. Supp. 337

SPERRY v. WABASH R. CO. et al.

No. 352-D.

District Court, E. D. Illinois.

November 8, 1943.

C. E. Tate, of Champaign, Ill., and W. A. Nichols, of Urbana, Ill., for plaintiff.

Henry I. Green, of Champaign, Ill., for defendants.

LINDLEY, District Judge.

Plaintiff seeks to have remanded a cause removed upon a petition alleging that a separable controversy existed between the corporate defendant, a nonresident of Illinois, and plaintiff, a resident of Illinois, justifying removal as provided by 28 U.S. C.A. § 71. The petition relied also upon an alleged fraudulent joinder of the individual defendants, employees of defendant railroad company, grounded upon the fact that, when an earlier suit had been filed against the corporate defendant alone, plaintiff, upon learning that application for removal was imminent, dismissed the suit and later filed this one, joining the employees.

To justify a removal, a separable controversy must be wholly between citizens of different states and one that can be fully determined as between them without the presence of others. Whether such a controversy exists must be determined from the pleading. Pullman v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334.

Plaintiff filed a complaint in compliance with the rules of practice promulgated by the Supreme Court of Illinois. She charges that the railroad company, "by and through its agents and servants and defendants Young, Ginder and Adams did one or more of the following acts which proximately and directly caused" injury to plaintiff. Several sub-paragraphs follow, charging specific negligence in operation of the railroad and its train, (a) to (g) inclusive. In the fourth, (d), plaintiff avers that the corporate defendant "negligently and carelessly failed to erect any warning signals, flasher signals, warning arms, crossing barriers or any signals at the crossing which would have apprised" plaintiff of the presence of the train, and in sub-paragraph (g), that there was then in force in Illinois Section 82 of Chapter 114 of the Revised Statutes, providing that no train shall be operated without good and sufficient brakes and a trusty and skillful brakeman on the rear of the car, unless the brakes are efficiently operated by power and that, on the day of the accident, the corporate defendant ran its cars without a brakeman so stationed and "without any brakes operated by power," thereby inflicting the injuries complained of. Plaintiff charges further that "as a direct and proximate cause of the negligence of defendants" the train ran upon her. The complaint contains no averment that the negligence of the corporate defendant in the two sub-paragraphs mentioned concurred with that of the individual defendants, or that any act or omission of the latter concurred with the alleged negligence of the former or that the joint and concurring negligence of all defendants combined or concurred to cause the injuries.

Rule 12 of the Rules of Practice promulgated by the Supreme Court of Illinois, Ill.Rev.Stat.1943, c. 110, § 259.12, provides that different breaches of duty, whether statutory or common law, growing out of the same transaction, "may be treated as a single claim or cause of action, and set up in the same count." The obvious effect of this provision is to permit plaintiff to unite in one count various causes of action growing out of the same circumstances and to eliminate necessity of separate counts as to separate causes of action, formerly required under the common law practice of Illinois. The rule contemplates a simplified pleading in which divers causes of action may be combined in one count without danger of a charge of duplicity.

Here, plaintiff has seen fit to aver, in certain sub-paragraphs, negligence on the part of all defendants. But the sub-paragraphs mentioned count solely upon the negligence of the railroad company and omit any averment that the other defendants were guilty of negligence concurring with that of the corporate defendant or that they in any way participated in such negligence or that their acts or omissions to act were in any way combined with those on the part of the corporate defendant to produce a common result. Each of these paragraphs would properly, under the former practice, have been included in a separate count, constituting a separate cause of action, in which the individual defendants in no way participated and for which they were in no wise liable. Asserted liability of the company, under these averments, constitutes causes of action for failure (1) to maintain proper signals and (2) to equip with proper brakes, to which the individual defendants are in no wise parties and creates a separable controversy between the parties.

A controversy may mean something less than the whole suit. Harrison v. Harrison, D.C., 5 F.2d 1001. It embraces a cause of action included within a suit which can be separated and disentangled...