Stratton's Independence v. Sterrett

• Decision Date: 03 April 1911
• Citation: 117 P. 351,51 Colo. 17
• Parties: STRATTON'S INDEPENDENCE, Limited, v. STERRETT.
• Court: Colorado Supreme Court

117 P. 351

51 Colo. 17

STRATTON'S INDEPENDENCE, Limited, v. STERRETT.

Supreme Court of Colorado, En Banc.

April 3, 1911

On Petition for Rehearing, July 3, 1911.

Appeal from District Court, Teller County; Robt. E. Lewis, Judge.

Action by Harry Sterrett against Stratton's Independence Limited, a corporation, and others. On death of plaintiff Minnie L. Sterrett, his administratrix, was substituted as plaintiff. From a judgment against the defendant corporation it appeals. Reversed and remanded, with directions.

Dorsey & Hodges, for appellant.

John M Glover, for appellee.

GABBERT, J.

Sterrett plaintiff below, by his next friend, Minnie L. Sterrett, brought suit against appellant and Angus MacDonald and Robert McKenzie, as defendants, to recover damages in the sum of $50,000 claimed to have been sustained by the joint and concurring negligence of these parties. The individual defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitue a cause of action against them, or either of them. The defendant corporation was engaged in mining, and for convenience will be referred to as the mining company. In apt time, the mining company, under the provisions of the act of Congress relating to removal of causes from state to federal courts (U. S. Comp. St. 1901, p. 509 et seq.), filed a petition and the requisite bond, duly approved, to remove the cause to the Circuit Court of the United States for the District of Colorado, which was denied. Thereafter it filed a general and special demurrer to the complaint. This demurrer, and also the one filed by the other defendants, was overruled. Each of the defendants then answered separately, to the affirmative defenses of which the plaintiff replied. The trial resulted in a verdict and judgment against the mining company in the sum of $10,000, and a verdict, as directed by the court, in favor of the defendants MacDonald and McKenzie. The mining company appeals. Since the appeal plaintiff has died, and his next friend has been substituted as the representative of his estate.

Two classes of errors are assigned: (1) That the court erred in denying the petition to remove the cause to the federal court; and (2) errors relating to the rulings on the demurrers to the pleadings, and those claimed to have been committed at the trial. We shall first consider the action of the trial court in denying the petition of the mining company to remove the cause to the federal court, for the reason that if it should be found that the court erred in denying the petition then it is wholly unnecessary, as well as improper, to consider the other errors assigned.

The complaint alleged that plaintiff and his next friend and defendants MacDonald and McKenzie were residents of the state of Colorado; and the petition for removal, after alleging that the matter in dispute exceeded, exclusive of interest and costs, the sum of $2,000, that Sterrett and his next friend were residents and citizens of the state of Colorado, and that the mining company, at the time of the commencement of the action, was, and ever since has been, a corporation, organized and existing under and by virtue of the laws of the kingdom of Great Britain, and citizen and resident thereof, was based substantially upon the following grounds or averments: That, in fact, there is no real controversy between the plaintiff and the individual defendants, or either of them; that neither of these parties is a real defendant, but are fictitious and sham defendants; that they were not joined with petitioner in good faith, and with the intent and purpose of prosecuting a bona fide claim against them, but were fraudulently joined, as defendants, for the purpose of preventing a removal of the cause to the federal court by petitioner; that the facts alleged in the complaint do not constitute joint or concurring negligence upon the part of petitioner and these defendants, or either of them; that these defendants are not necessary or indispensable parties to the action; that the controversy is wholly between the petitioner (a foreign subject and nonresident of Colorado) and plaintiff and his next friend, who are citizens and residents of Colorado, which can be fully determined as between them without the presence of the defendants McKenzie and MacDonald; and that such separable controversy between petitioner and plaintiff and his next friend arises upon the allegations of the complaint.

For the purpose of considering the petition to remove, it becomes necessary to consider the averments of the complaint, which, after alleging that the defendants MacDonald and McKenzie were operatives, agents, and employés of the mining company, that they, plaintiff, and his next friend at all times mentioned were residents of the state of Colorado, and the defendant company a corporation organized and existing under the laws of Great Britain, alleges:

'(4) That on, to wit, the 18th day of January, 1904, at the county of Teller, state of Colorado, the aforesaid Harry Sterrett was an employé of the said the Stratton's Independence, Limited, engaged under the direction and control of the defendants Angus MacDonald and Robert McKenzie, on the 100th level of the underground workings of the mine of the said Stratton's Independence, Limited, in Teller county, Colorado, in shoveling broken bodies of rock as by them directed, and the said Harry Sterrett was in said work under the immediate direction of the said Robert McKenzie, who was known as the 'tram boss'; and the said Robert McKenzie was himself working under the immediate control and direction of the said Angus MacDonald, who was known as the 'shift boss,' in charge of the body of men of which the said Harry Sterrett was one; and the said Angus MacDonald was under the immediate direction and control of the said Stratton's Independence, Limited, and its executive officers.

'(5) That by the joint and concurring negligence of all of the defendants herein, the underground chamber or gallery in which the said Harry Sterrett was so working contained, in the roof and sides thereof, partially loosened bodies of rock, liable at any time to fall and kill him and others working beneath and adjacent to the same; and the said defendants had for some days previous thereto negligently permitted this condition of things to remain, and negligently failed to have the said chamber or gallery properly timbered, and thereby protected in accordance with the due care and prudence required in careful mining operations.

'(6) That the said Harry Sterrett was very inexperienced, but a short time previous to the injury hereinafter detailed spoke to said McKenzie and called his attention to this condition, and asked if the place was safe to work in, whereupon the said McKenzie assured him that it was safe, and positively ordered him to continue to work there; and the said plaintiff, relying upon the greater experience of the said McKenzie, believed the conditions to be safe, and therefore continued to work, and this was before the injury hereafter detailed; and the plaintiff was relying in good faith upon the said assurance when so injured.

'(7) That on the 18th day of January, 1904, about 3 o'clock in the afternoon, while the plaintiff was so engaged under the direction of the said McKenzie in performing the work which the said McKenzie had ordered him to perform, a portion of this loosened rock fell, without warning, and struck the plaintiff. * * *'

The paragraph then details the injuries sustained, and concludes: 'That by reason of the premises and the conjoint and concurrent negligence of the defendants the plaintiff has suffered the injuries hereinbefore described, and has been damaged in the sum of fifty thousand dollars ($50,000.00), for which amount and the costs of this suit he prays judgment.'

The plaintiff and his next friend were citizens of this state, and the defendant mining company a citizen of the kingdom of Great Britain. The defendants McKenzie and MacDonald were also residents of Colorado. If, then, it should appear, from an analysis of the complaint, that a cause of action is not stated against either of these parties, or that a controversy existed wholly between plaintiff and the mining company, which could be fully determined as between them, without the presence of the other defendants, who were residents of this state, the petition for removal should have been granted.

The basis of plaintiff's cause of action is the alleged joint and concurring negligence of the defendants. An action of tort for which several are jointly responsible, according to the averments of the complaint, may be brought against all or one or more of them. Where, however, the resident defendants are joined with a nonresident in an action of that character, brought in a state court, and it appears that a cause of action for the alleged tort is not stated against the resident defendants, or either of them, the mere fact that they are so joined does not prevent the nonresident defendant from removing the case to the federal court upon the ground that they were fraudulently joined for the purpose of preventing such removal. We make this the test, because upon both reason and authority such defendants are sham and fictitious; consequently they are improperly joined, their presence is unnecessary, and their joinder in such circumstances will not defeat an application for removal on the part of the nonresident defendant. Arrowsmith v. Nashville & D. R. Co. (C. C.) 57 F. 165; Hukill v. Maysville & B. S. R. Co. (C. C.) 72 F. 745; Prince v. Ill. Central R. Co. (C. C.) 98 F. 1; Nelson v. Hennessey (C. C.) 33 F. 113; Cin., N. O. & T. P. Ry. Co. v. Robertson, 115 Ky. 858, 74 S.W. 1061; Davis, Adm'r, v....