Warax v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 01 January 1896
• Citation: 72 F. 637
• Parties: WARAX v. CINCINNATI, N.O. & T.P. RY. CO. et al.
• Court: United States Circuit Court, District of Kentucky

72 F. 637

WARAX v. CINCINNATI, N.O. & T.P. RY. CO. et al.

United States Circuit Court, D. Kentucky.

1896

This is a motion by the plaintiff in the above-entitled cause to remand the case to the state court, where it was begun. Plaintiff's cause of action against the defendant railway company and its codefendant is stated in the petition as follows:

'On March 2, 1892, on said railway, and in the railway yard thereof at Somerset, plaintiff was the servant of the corporate defendant, employed by it as a switchman, and as a member of the crew of a yard locomotive engine and tender then and there belonging to the corporate defendant, and used by it in operating said railway; and defendant Charles Snyder was then and there also the servant of the corporate defendant, employed by it as a member of said crew, and as the engineer of said locomotive engine, and he then and there, as such engineer and servant of the corporate defendant, ran and operated the same. At the time and place aforesaid, defendants had attached to said locomotive engine and tender a train of five freight cars, and defendants then and there ordered and directed plaintiff to uncouple the three rear cars of said train; and thereupon plaintiff engaged in the work of executing said order and direction of defendants, and while plaintiff was so engaged in the work of executing said order and direction of defendants, the defendants, with full knowledge that plaintiff was engaged in said work, and without notice or warning to plaintiff, with gross and wanton negligence suddenly and violently started the cars of said train forward with and by means of said locomotive engine, and so moved, ran, and operated said locomotive engine, tender and cars of said train that then and there, by said gross and wanton negligence of defendants, plaintiff was thrown under the cars of said train; and then and there, by reason of said gross and wanton negligence of defendants plaintiff's left leg was run upon and over by the cars of said train, and so injured that the same had, soon thereafter, to be amputated above the knee, and near the body, and he was otherwise severely and permanently injured in his person. By his said injuries plaintiff was made, and long continued, ill therefrom. He suffered, and long will continue to suffer, great mental pain and physical anguish. Thereby he was made a helpless cripple for life, and his capability to labor and earn money was greatly and permanently impaired, all to his damage in the sum of twenty-five thousand dollars. In the doing of said wrong defendant Snyder was the servant and agent of his codefendant, and said gross and wanton negligence was the joint gross and wanton negligence of both the defendants.'

The railway company filed its petition for removal, setting out the various jurisdictional grounds, and, among others, the following:

'That there is, in said suit, a controversy wholly between citizens of different states, which can be fully determined as between them; that is to say, between your petitioner, the Cincinnati, New Orleans & Texas Pacific Railway Company, defendant in said suit (who avers that it was at the commencement of this suit, and still is, a corporation organized under the laws of the state of Ohio, and of no other state, and that it was then and still is, a citizen and resident of the state of Ohio, and of no other state, and that it was not then, and is not now, either a resident or citizen of the state of Kentucky), and plaintiff, Eugene R. Warax, who sues by his next friend, John L. Rich. Your petitioner says that both the said Warax and John L. Rich were at the commencement of this suit, and still are, residents and citizens of the state of Kentucky. Your petitioner further shows that heretofore, to wit, on the 13th day of December, 1892, a suit was instituted upon the same claim as in plaintiff's petition herein set out against this defendant, in the circuit court of Pulaski county, Kentucky, to recover of this defendant the sum of ten thousand dollars damages for the same injuries alleged to have been sustained by the said plaintiff, Eugene R. Warax, as in his petition herein set out. Your petitioner further shows that it filed the proper proceedings in said suit so pending in the Pulaski circuit court, Kentucky, to remove said suit to the circuit court of the United States for the district of Kentucky, because said controversy was a controversy existing between citizens of different states, and that such proceedings were had that the said suit was removed from the said Pulaski circuit court to the circuit court of the United States for the district of Kentucky, and that the jurisdiction of said suit wholly vested in said circuit court of the United States for the district of Kentucky, and the said suit expended, undisposed of, in the said circuit court of the United States for the district of Kentucky, until the 12th day of December, 1894, when the plaintiff dismissed said suit from the said circuit court of the United States for the district of Kentucky, and immediately after said dismissal brought this proceeding in this court to recover for the same injuries, from this defendant, the said sum of twenty-five thousand dollars. Your petitioner further shows that, in this suit, said plaintiff has fraudulently and improperly joined as a codefendant with your petitioner herein one Charles Snyder, who is a citizen of the state of Kentucky, and who is a resident of the county of Pulaski, in the state of Kentucky; and your petitioner says that the said Charles Snyder has been fraudulently and improperly joined as party defendant with your petitioner in this cause, from the fact that he is a resident and citizen of the state of Kentucky, and for the sole purpose of defeating the jurisdiction of the United States court. And your petitioner says that the injury to the plaintiff, Eugene R. Warax, happened on the 3d day of March, 1892, in the town of Somerset, county of Pulaski, and state of Kentucky, and said injury did not happen or occur in the county of Kenton, in the state of Kentucky. And your petitioner says that the plaintiff, Eugene R. Warax, resides in Pulaski county, Kentucky, through which county your petitioner's road passes, and that the chief office and place of business of your petitioner in the state of Kentucky is in the city of Lexington and county of Fayette.'

Plaintiff filed an answer to the petition for removal in this court, denying that there was, in this suit, a controversy wholly between citizens of different states, which could be fully determined between them, and denying that Snyder was joined as a party defendant for the sole purpose of defeating the jurisdiction of the United States court. It appeared by evidence and admission that a previous suit had been brought and dismissed as averred in the petition for removal.

Wm. Goebel, for plaintiff.

Edward Colston and C. B. Simrall, for defendant.

Before TAFT and LURTON, Circuit Judges.

TAFT Circuit Judge (after stating the facts as above).

Plaintiff's petition seeks to hold the railroad company and Snyder, its engineer, as joint tort feasors. If, on the statements in the petition, he is able to do so, then the cause is not removable (Railroad Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203; Pirie v. Tvedt, 115 U.S. 41, 5 Sup.Ct. 1034, 1161; Sloane v. Anderson, 117 U.S. 275, 6 Sup.Ct. 730; Plymouth Consol. Gold Min. Co. v. Amador & S. Canal Co., 118 U.S. 264, 6 Sup.Ct. 1034; Hedge Co. v. Fuller, 122 U.S. 535, 7 Sup.Ct. 1265), unless it be made to appear, to the satisfaction of the court, that one of the defendants was fraudulently joined for the purpose of defeating the jurisdiction of the federal court. In order that such joinder should be regarded as fraudulent, it must appear, by allegation and proof, not only that it was made for the purpose of avoiding the jurisdiction of the federal court, but also that the averments of the petition upon which the right to join the defendants is claimed are so unfounded and incapable of proof as to justify the inference that they were not made in good faith with the hope and intention of proving them, or else that they do not state a joint cause of action. No proof is offered in this case, except the fact that suit was once brought on the same cause of action against the railroad company without joining Snyder, the engineer. This may be regarded as a circumstance tending to show that the purpose in joining Snyder was to avoid the jurisdiction of the federal court, but it does not show, or have any tendency to show, that the averments of the petition with respect to Snyder, upon which the right to join Snyder is asserted, were unfounded in fact. One who has a real cause of action for joint tort against two persons cannot be deprived of the right to bring his action against both, and to retain both in the case, and to have the case heard with both as defendants, merely because he joined them for the purpose of avoiding the jurisdiction of the federal court. If the right exists, the motive for its exercise cannot defeat it. It should be said, however, that where, as in this case, there is manifested a desire to prevent a removal by the unusual course of joining a locomotive engineer with a railroad company, the court will not be astute, by any strained construction, to make the averments of the petition support the plaintiff's right to join the defendants.

This brings us to the second ground upon which the plaintiff claims a right of removal; that is, that no cause of action is stated against the engineer. It is contended that the failure of the engineer to give notice to the plaintiff of his intention to move the train while the plaintiff was between the cars was a mere act of nonfeasance,...