Trivette v. Chesapeake & O.R. Co.

• Decision Date: 07 April 1914
• Docket Number: 2420.
• Citation: 212 F. 641
• Parties: TRIVETTE v. CHESAPEAKE & O.R. CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

212 F. 641

TRIVETTE v. CHESAPEAKE & O.R. CO. et al.

No. 2420.

United States Court of Appeals, Sixth Circuit.

April 7, 1914

A. E Auxier, of Pikeville, Ky., for plaintiff in error.

Worthington Cochran & Browning, of Maysville, Ky., for defendants in error.

Before KNAPPEN and DENISON, Circuit Judges, and SANFORD, District judge.

KNAPPEN Circuit Judge.

Plaintiff a citizen of Kentucky, brought suit in a court of that state against the company and its locomotive engineer for the negligent killing of the intestate. The railroad is a Virginia corporation; the individual defendant is a citizen of Kentucky. The suit was removed to the federal court by reason of diversity of citizenship of the parties, upon a petition alleging a separable controversy and fraudulent joinder of the individual defendant for the purpose of preventing removal. A motion to remand the suit to the state court was denied. At the conclusion of the trial upon the merits, verdict was directed, and judgment entered, for defendants. The assignments of error challenge: (a) The refusal to remand; (b) the direction of verdict. The petition alleges negligence in two respects: (a) On the part of the railroad company in providing an approach for the public to the depot and platform only over and by way of the track in front thereof, and in failing to provide steps at either end of the platform; (b) on the part of the engineer in the manner of operating the train.

1. The refusal to remand.

As respects the alleged negligence in the operation of the train: According to the settled law of Kentucky, the engineer was properly joinable as defendant with the corporation. Winston's Adm'r v. Ill. Central R.R. co., 111 Ky. 954, 957, 65 S.W. 13, 55 L.R.A. 603; Cincinnati, N.O. & T.P.R. Co. v. Bohon, 200 U.S. 221, 223, 26 Sup.Ct. 166, 50 L.Ed. 448, 4 Ann.Cas. 1152; Enos v. Kentucky Distilleries, etc., Co. (C.C.A. 6th Cir.) 189 F. 342, 3468 111 C.C.A. 74. And when so joined in good faith, solely upon the ground of the responsibility of the principal for the act of the servant, though not expressly charged with any concurrent act of negligence, a separable controversy is not presented. Alabama Gt. Southern Ry. v. Thompson, 201 U.S. 206, 212, 26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147. Unless therefore the engineer was fraudulently made defendant, to prevent removal, no separable controversy was presented as to that particular cause of action. In the federal court, plaintiff formally denied fraudulent joinder; the issue thus raised was not tried; and as the burden of proof was, by plaintiff's denial, placed upon defendants (Hunter v. Ill. Central R. Co. (C.C.A. 6th Cir.) 188 F. 645, 649, 110 C.C.A. 459; Enos v. Kentucky Distilleries, etc., Co., supra, 189 Fed.at page 345, 111 C.C.A. 74), the question of fraudulent joinder is out of the case, and was disregarded by the court below in passing upon the motion to remand.

It is clear that the engineer is neither charged nor concerned with the alleged negligence relating to the means of access to the railway station and platform. As to this ground of negligence, therefore, a separable controversy existed, which was removable to the federal court, unless the negligence in operating the train and the negligence with respect to the depot and platform are sufficiently alleged to have concurred in producing the accident. Nichols v. Chesapeake & Ohio R. Co. (C.C.A. 6th Cir.) 195 F. 913, 915, 115 C.C.A. 601. If, however, such joint action and concurrence are sufficiently alleged, the case was not removable. Chicago, R.I. & P.R. Co. v. Dowell, 229 U.S. 102, 111, 33 Sup.Ct. 684, 57 L.Ed. 1090. It does not follow from the fact that the railroad is alleged to be negligent with respect to the approaches to the depot and platform, and the company and its engineer charged to be negligent with respect to the operation of the train, that a concurring action of the two alleged classes of negligence is charged. To illustrate the distinction: In Nichols v. Chesapeake & Ohio R. Co., supra (where a charge of negligence against the railroad company and its engineer, based upon the latter's negligent operation, was joined with a charge that the railroad company had violated the safety appliance statute), Judge Denison said:

'Different rights of action may, it is true, often be joined in one suit, but this does not make them inseparable. The existence of the 'separable controversy' right of removal presupposes that it may be found joined in one action with another controversy.'

On the other hand, in Willard v. Chicago, B. & Q.R. Co., 165 Fed 181, 183 (91 C.C.A. 215) (involving an action against lessor and lessee railroad companies), Judge Seaman said:

'The cause presented in the state court by the declaration was joint, expressly charging joint negligence and liability-- plainly tendering no issue of several negligence, and not provable for several liability-- as that the controversy was not removable on such election of plea, in the absence of unmistakable proof of bad faith in the joinder, as a fraud upon the court and parties.'

Whether there was a joint liability or not is to be determined upon the averments of the plaintiff's statement of his cause of action. Chicago, R.I. & P.R. Co. v. Dowell, supra, 229 U.S. 111, 113, 33 Sup.Ct. 684, 57 L.Ed. 1090. The controlling question then is: Does the plaintiff's petition, fairly construed, allege that the negligent operation of the train and the negligent maintenance of depot and platform concurred in, and co-operated toward, producing the injury? In nearly, if not quite, all of the leading cases in the Supreme Court, where the defendants were not charge with each act of negligence alleged, and where the right to remove was denied on the ground that no separable controversy existed, it appears from the opinion that the injury was alleged to be caused by the joint or concurring operation of the various negligent acts. Thus, in Wecker v. National Enameling Co., 204 U.S. 176, 179, 27 Sup.Ct. 184, 51 L.Ed. 430, 9 Ann.Cas. 757, the complaint charged the joint negligence of the corporation and the individual defendants, and averred that plaintiff's injuries were the result thereof. In Illinois Central R. Co. v. Sheegog, 215 U.S. 308, 320, 30 Sup.Ct. 101, 54 L.Ed. 208, it was charged that the various acts of negligence 'all together jointly caused said wreck, and killed the plaintiff's intestate. ' In Chicago, R.I. & P.R.R. Co. v. Dowell, supra, it was charged that:

'Each and every act of omission and commission of the defendants and of each of them as above, were the joint, proximate and concurrent cause of said injury, and each of said acts of the said defendants materially, concurrently and jointly contributed to the injuries of said plaintiff.'

In Enos v. Kentucky Distilleries, etc., Co., supra, decided by this court, the defendants were alleged to be jointly and concurrently negligent. In American Bridge Co. v. Hunt (C.C.A. 6th Cir.) 130 F. 302, 305, 64 C.C.A. 548, where the existence of a separable controversy was denied, the corporation was charged with negligence in retaining a defective crane, and with intrusting its management to an unskilled and incompetent servant. The latter was alleged 'to be negligent in operating the same in that he permitted said floor beam to swing against said other beams,' and thereby to fall against other beams. The present Mr. Justice Lurton said:

'Thus we have the negligence of the company in respect to its duty in furnishing a reasonably safe appliance and competent fellow servants, concurring with the negligence of the defendant Calvin Guthrie in the management of a defective crane, to bring about the injury to the decedent.'

The charge of concurrent negligence seems to have been predicated upon an averment that the defect in the machine was such as to make it uncontrollable, not by a competent and skillful servant, but by the operator, who was alleged not to have sufficient skill and experience for the purpose.

Does the petition in the instant case allege joint and concurrent negligence, either by express characterization or by natural implication arising from the statement of the way in which the accident happened? It alleged that the depot was constructed 'on slanting ground,' with a platform between the depot and the track which was on a fill 'on the slanting ground,' the platform extending to the end and about 16 inches above the tops of the ties, its edge being so near the rails 'that a train of cars passing would strike...