Hay v. May Department Stores Co
| Decision Date | 24 May 1926 |
| Docket Number | No. 292,292 |
| Parties | HAY v. MAY DEPARTMENT STORES CO. et al |
| Court | U.S. Supreme Court |
Action in state court against two defendants jointly, in which plaintiff states a case of joint liability arising out of the concurrent negligence of both defendants, does not present a separable controversy as affecting right of removal to federal court under Judicial Code, § 28 (Comp. St. § 1010), though plaintiff might have sued defendants separately.
Allegations of complaint in action against two defendants jointly are decisive against separable nature of controversy, in absence of showing that one defendant was fraudulently joined to prevent removal.
Petition in employee's action against nonresident employer and resident coemployee, jointly alleging that plaintiff was injured by being run into by coemployee's truck after his own had been stopped by de bris obstructing passageway, through concurrent negligence of both defendants, held not to state a separable controversy as to the employer, as affecting its right of removal, under Judicial Code, § 28 (Comp. St. § 1010).
Messrs. James J. O'Donohoe, Mark D. Eagleton, and Harry S. Rooks, all of St. Louis, Mo., for plaintiff in error.
Messrs. Robert A. Holland, Jr., and Jacob M. Lashly, both of St. Louis, Mo., for defendants in error.
This case presents a question as to the jurisdiction of the District Court arising under the provision of section 28 of the Judicial Code (Comp. St. § 1010) that: When there is pending in a State court any civil suit of which the District Courts of the United States are given original jurisdiction, in which 'there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district.'
The suit was brought by Hay, a citizen of Missouri, in the Circuit Court of St. Louis, against the Stores Company, a New York corporation, and McCormick, a citizen of Missouri, to recover damages for personal injuries.
The petition alleged that the plaintiff and McCormick were employed by the Stores Company in its place of business in Missouri, in moving loaded trucks along a tunnel or passageway on its premises; that the company negligently permitted this passageway to become strewn with de bris, and negligently required its employees to push heavily loaded trucks along the passageway, unassisted, rapidly, and at short and unsafe intervals; that McCormick, who was not a reasonably safe co-employee, habitually pushed his truck at an unsafe speed, in dangerous proximity to the preceding truck, and without exercising reasonable care to avoid a collision; that, although the company knew or by the exercise of ordinary care could have known of these dangerous and negligent habits, it negligently caused and permitted him to continue to perform his duties in this negligent and unsafe manner; that on the day of the accident, while the plaintiff was engaged in pushing a loaded truck along the passageway, it was suddenly stopped by de bris obstructing the passageway, and he was struck by a loaded truck which McCormick was negligently pushing, close behind him, at a rapid rate of speed, and which 'the defendants' negligently failed to stop or divert so as to avoid the collision; and 'that the negligence of both defendants as aforesaid concurred and jointly cooperated to cause, and did directly and proximately cause, the aforesaid collision,' from which the plaintiff sustained serious and permanent injuries, to his damage in the sum of $15,000.
The Stores Company in due time presented to the Circuit Court its petition for the removal of the cause to the District Court. The sole ground alleged for the removal was that the plaintiff's petition showed 'upon its face' that there was 'a separable controversy' in the cause between the plaintiff and the Stores Company, citizens of different States, in that, under its allegations ...
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Pullman Co v. Jenkins 13 8212 14, 1938, 210
...Chicago, R.I. & P.R. Co. v. Dowell, 229 U.S. 102, 111-113, 33 S.Ct. 684, 685, 686, 57 L.Ed. 1090; Hay v. May Department Stores Company, 271 U.S. 318, 321, 322, 46 S.Ct. 498, 499, 70 L.Ed. 965; Watson v. Chevrolet Motor Co., 8 Cir., 68 F.2d 686, 689; Harrelson v. Missouri Pacific Transportat......
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Stith v. Newberry Co., 31563.
...Supreme Court as long as the last cause of action remained in the case there was no separable controversy. Hay v. May Dept. Store Co., 271 U.S. 318, 46 Sup. Ct. 498, 70 L. Ed. 965; Alabama Great Southern Railroad Co. v. Thompson, 200 U.S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441. (d) But when pl......
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Thompson v. Standard Oil Co. of New Jersey
...several, for the purpose of a removal to the federal court. Slate v. Hutcherson (C. C. A.) 15 F.(2d) 551; Hay v. May Department Stores Co., 271 U. S. 318, 46 S. Ct. 498, 70 L. Ed. 965; Sanders v. Atlantic Coast Line R. Co. (D. C.) 33 F.(2d) The judgment of the District Court must therefore ......
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