Wells v. Missouri Pac. R. Co., 10711.

• Decision Date: 26 January 1937
• Docket Number: No. 10711.,10711.
• Citation: 87 F.2d 579
• Parties: WELLS v. MISSOURI PAC. R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

87 F.2d 579 (1937)

WELLS v. MISSOURI PAC. R. CO. et al.

No. 10711.

Circuit Court of Appeals, Eighth Circuit.

January 26, 1937.

Tom W. Campbell, of Little Rock, Ark. (J. H. Lookadoo, of Arkadelphia, Ark., on the brief), for appellant.

Henry Donham, of Little Rock, Ark. (Robert E. Wiley, of Little Rock, Ark., on the brief), for appellees.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from a judgment below dismissing, for want of prosecution, an action for damages brought originally by the appellant in the Circuit Court of Clark County, Ark., against L. W. Baldwin and Guy A. Thompson, trustees of the Missouri Pacific Railroad Company, and one Jack Creth. The nonresident trustees removed the case to the federal District Court on the ground that the complaint alleged a separable controversy against them from that alleged against the resident defendant Creth. The appellant moved to remand. The motion was denied and, for failure of the appellant to prosecute further in the federal court, the cause was dismissed. The error assigned is the failure of the lower court to remand the case to the state court.

The appellant in his original petition alleged that on the morning of August 11, 1935, he rode defendant trustee's railway train, as a paying passenger, from Gurdon, Ark., to Wheelen Springs, Ark.; that, on the arrival of the train at Wheelen Springs, defendant Jack Creth, whose duty it was, acting for the defendant trustees, to assist passengers in getting on and off the train and to set a footstool below the last step for the passengers to step on in getting on and off, got off the train before appellant got off; that appellant knew of defendant Creth's duty, as he had previously ridden this train and gotten off at Wheelen Springs; that at the particular time complained of defendant Creth, acting for the defendant trustees, carelessly and negligently did not place the footstool down, as it was his duty to do, and carelessly and negligently failed to warn the passengers that the footstool was not in its accustomed place or to watch their step; that the appellant, in the exercise of all precaution required of a reasonable and prudent person under the circumstances, started down the steps in his usual and customary manner, and, as he stepped from the last step, due to the absence of the footstool, fell to the ground, suffering certain injuries; and that his injuries were caused by the joint and concurrent negligence of the above-named defendants in the particulars described.

The nonresident defendants, in their petition for removal, alleged the diversity of citizenship between themselves and the appellant, and that appellant had, for the fraudulent purpose of depriving the United States District Court of its jurisdiction to try and determine the cause, joined Creth in the complaint as a party defendant without any intention to prosecute the action against him. The petition further denied the allegations of negligence of the original complaint; denied that the appellant exercised any precaution in getting off the coach and that appellant sustained any injuries by reason of any negligence on the part of defendant Creth. It was further alleged that, if appellant was injured, it was due to his own failure to exercise due care in getting off the coach; that the original complaint failed to allege any act of misfeasance on the part of Creth which could have contributed to any of the alleged injuries; that appellant knew he had no cause of action against Creth; and that for failure of the complaint to state a cause of action against Creth there existed a separate and separable controversy against the petitioners from that alleged against their codefendant Creth.

The appellant in his motion to remand took issue with and traversed all the allegations of the petition for removal except that of diversity of citizenship between himself and the petitioners.

At the outset the appellees contend that, as the appellant has failed to bring up the evidence taken below on the motion to remand, the judgment must necessarily be affirmed, basing their contention upon an alleged rule to the effect that the party taking an appeal must see to it that the evidence, if any, is in the record, or show that no evidence was offered or received; and it is contended that, where the appellant has failed in this regard, it will be presumed that evidence was offered to support the ruling of the court below. Appellees rely upon the decisions of this court in Pulaski-Lonoke Drainage Dist. v. Missouri Pac. R. Co. (C.C.A.8) 44 F.(2d) 899, and American Nat. Red Cross v. Raven Honey Dew Mills (C.C.A.8) 74 F.(2d) 160. The teaching of these cases is not applicable, however, when the controverted question is that of the jurisdiction of the federal court.

It is true, of course, that a right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy, and the joinder, though fair on its face, may be shown by a verified petition for removal to be only a sham to prevent removal. Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152, 34 S.Ct. 278, 58 L.Ed. 544. Furthermore, if the plaintiff does not take issue with the statements of the removing petition, it will be assumed that he assents to the truth of its allegations, and the petitioning defendant is not required to offer proof to sustain it; it being enough if the removing petition is sufficient in point of law. Wilson v. Republic Iron Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144. But where, as in this case, the plaintiff, by motion to remand, takes issue with the statements of the removing petition, the petitioning defendant must take and carry the burden of proof. Carson v. Dunham, 121 U.S. 421, 425, 7 S. Ct. 1030, 30 L.Ed. 992. This is but a specific application of the general principle that, where a jurisdictional allegation is challenged in the lower court in appropriate manner, the party invoking the power of the court must carry throughout the litigation the burden of showing that he is properly in court, KVOS v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. ___, so that, if the record discloses...