St. Louis Southwestern Ry. Co. v. Adams

• Decision Date: 06 July 1908
• Citation: 112 S.W. 186
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. et al. v. ADAMS.
• Court: Arkansas Supreme Court

Page 186

112 S.W. 186

ST. LOUIS SOUTHWESTERN RY. CO. et al. v. ADAMS.

Supreme Court of Arkansas.

July 6, 1908.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Action by Silas Adams, by next friend, against the St. Louis Southwestern Railway Company and another. From a judgment for plaintiff against the railway company, the latter appeals. Reversed, with directions to order removal of the cause to the federal court.

S. H. West and J. C. Hawthorne, for appellant. H. A. Parker and G. F. Chapline, for appellees.

McCULLOCH, J.

The plaintiff, Silas Adams, a lad of about 11 years of age, instituted, by next friend, this action in the circuit court of Monroe county against the St. Louis Southwestern Railway Company and Otto Smith, one of its conductors on a freight train, to recover damages caused by his being knocked down and injured by moving cars. Damages are laid in the sum of $9,500. It is alleged in the complaint that defendant Smith was conductor on the freight train which inflicted the injury to plaintiff and had charge of the train at that time; that plaintiff was injured while attempting to drive some calves across the railroad track at the town of Clarendon, Ark.; and that the defendants were negligent in failing to ring the bell or sound the whistle of the locomotive, or to place some person in charge of a car keeping a lookout which was being "kicked" backward on the switch and which caused the injury to plaintiff. Defendant railway company in apt time filed its petition and bond in due form for removal of the case in the Circuit Court of the United States. The petition states, among other things, the diverse citizenship of plaintiff and the defendant; that "the plaintiff has, for the fraudulent purpose of preventing this defendant from removing this cause to the federal court, and for the fraudulent purpose of defeating the federal court of jurisdiction, joined in his complaint one Otto Smith as a party defendant; that said Otto Smith, while he was conductor on the train by which the plaintiff is alleged to have been injured, was not in charge of said train at the time of the accident, and under the rules of the company he was not required to be in charge of said train; that, among other duties that he had to perform, he had to look over the bills for outgoing freight from such stations as Clarendon, Ark., at the place the injury is said to have taken place; that at the time of the injury defendant Smith was inside of the depot building in the office of the agent, engaged in the work of getting the waybills for outgoing freight; * * * that he is not in any way, by the rules of the company or by custom of the management of the road, required to look after or be present in the movement or setting of freight cars or in switching same; that all these facts are well known to plaintiff's attorney, who joined the said Otto Smith as a party defendant for the sole and only purpose of preventing the removal of this cause." The petition was duly verified by the affidavit of the attorney for the railway company and also by the affidavit of defendant Smith. The court overruled the petition for removal, and retained jurisdiction of the case. Both defendants filed separate answers, denying all allegations of the complaint as to negligence. The case proceeded to trial, resulting in verdict and judgment for plaintiff against the railway company alone, and the latter appealed to this court.

It is contended that the complaint does not on its face set forth facts sufficient to constitute a cause of concurrent negligence on the part of the railway company and its co-defendant Smith, and that the case was, on the face of the complaint, removable. We do not agree to this construction. The cause of action is imperfectly stated in the complaint, but it is nevertheless a statement of a cause of action against both defendants for joint or concurrent negligence. The defective statement of the cause of action could only be questioned by motion to make the complaint more definite and certain. C., O. & G. R. R. Co. v. Doughty, 77 Ark. 1, 91 S. W. 768; Roberts & Schaeffer Co. v. Jones, 82 Ark. 188, 101 S. W. 165. As the complaint on its face states a cause of action against both of the defendants which can be properly joined in one action, the cause cannot be removed on the ground that it is a separable controversy merely by raising an issue of fact in the petition for removal as to whether or not a joint cause of action exists. This is settled by repeated decisions of the Supreme Court of the United States. The latest utterance of that court on the subject is in the case of Alabama Great So. Ry. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441. The court in that case quotes with approval the following statement of the law by Mr. Justice Gray in Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673: "It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said, `a defendant has no right to say that an action shall be several which the plaintiff seeks to make joint.' A separate defense may defeat a joint recovery, but it cannot...