Whiteaker v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 24 November 1913
• Citation: 160 S.W. 1009,252 Mo. 438
• Parties: DANIEL C. WHITEAKER v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY et al., Appellants
• Court: Missouri Supreme Court

160 S.W. 1009

252 Mo. 438

DANIEL C. WHITEAKER v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY et al., Appellants

Supreme Court of Missouri

November 24, 1913

Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Affirmed.

Paul E Walker, Luther Burnes, E. C. Hall and M. A. Low for appellants.

(1) The trial court had jurisdiction of neither the parties nor the subject-matter of the action, and was without power to render a binding judgment therein. Stone v. South Carolina, 117 U.S. 432; Carson v. Hyatt, 118 U.S. 279; Railroad v. Dunn, 122 U.S. 513; Crehore v Railroad, 131 U.S. 240; Railroad v. Wangelin, 132 U.S. 599; Railroad v. Daughtry, 138 U.S. 298; Railroad v. Herman, 187 U.S. 63; Traction Co. v Mining Co., 196 U.S. 239; Railroad v. McCabe, 213 U.S. 207; Railroad v. Eastin, 214 U.S. 153; Railroad v. Stone, 70 Kan. 708; Hickman v. Railroad, 151 Mo. 644; Bank v. Fritzlen, 75 Kan. 479; Donovan v. Wells, Fargo & Co., 169 F. 363; Kelly v. Railroad, 122 F. 286; Arapahoe Co. v. Railroad, 4 Dill. 277; Bank v. Fritzlen, 135 F. 650; Dishon v. Railroad, 113 F. 471; Wecker v. Enameling & Stamping Co., 204 U.S. 176; Railroad v. Thompson, 200 U.S. 206; Railroad v. Bohon, 200 U.S. 221; Winston v. Railroad, 111 Ky. 954; Railroad v. Sheegog, 215 U.S. 308. (2) The court erred in refusing to sustain the demurrer to the evidence for the respondent; and in refusing to direct the jury to return a verdict in favor of the railway company. Clark & Skyles on Law of Agency, sec. 494; Wood on Master & Servant, p. 59, sec. 307; Howe v. New March, 12 Allen, 49; McManus v. Crickett, 1 East, 106; Croft v. Allison, 4 B. & Ald. 590; Stevens v. Woodward, 44 L.T.(N.S.) 153; Railroad v. Baum, 26 Ind. 72; Marion v. Railroad, 59 Iowa, 428; Tel. Co. v. Mullins, 44 Neb. 732; Mott v. Ice Co., 73 N.Y. 543; Clancy v. Barker, 131 F. 161; Coal & Iron Co. v. Barrie, 179 F. 50; Davenport v. Railroad, 72 S.C. 205; Cobb v. Railroad, 37 S.C. 194; Brown v. Ice Co., 178 Mass. 108; Obertoni v. Railroad, 186 Mass. 481; Sullivan v. Railroad, 115 Ky. 447; Smith v. Railroad, 78 Hun, 524; Berry v. Railroad, 188 Mass. 536; Everingham v. Railroad, 148 Iowa, 662; Railroad v. Robinson, 95 Ark. 39; Grattan v. Suedmeyer, 144 Mo.App. 719; Bowen v. Railroad, 136 F. 306; Turley v. Railroad, 70 N.H. 348; Sweeden v. Improvement Co., 93 Ark. 397; Mirick v. Suchy, 74 Kan. 715; 26 Cyc. 1526; Girvin v. Railroad, 166 N.Y. 289; Miller v. Wanamaker, 111 N.Y.S. 786; Bowen v. Railroad, 136 F. 306; Daniel v. Railroad, 136 N.C. 517; Candiff v. Railroad, 42 La. Ann. 477; Railroad v. Routt, 25 Ky. L.R. 887; Georgia R. & B. Co. v. Wood, 94 Ga. 124; Couchin v. Railroad, 13 Ariz. 259; Hudson v. Railroad, 16 Kan. 470; Sachrowitz v. Railroad, 37 Kan. 212; Crelly v. Tel. Co., 84 Kan. 19; Berryman v. Railroad, 228 Pa. St. 621; Waaler v. Railroad, 18 S.D. 420; Railroad v. Yarbrough, 7 Am. & Eng. R. Cas. (N.S.) 733; Stephenson v. Railroad, 93 Cal. 558; Golden v. Newbrand, 52 Iowa, 61; Davis v. Houghtelin, 33 Neb. 582; Fairbanks v. Warehouse Co., 189 Mass. 419; Railroad v. Latham, 72 Miss. 32; Mitchell v. Cross-weller, 13 C. B. 236; McFarlan v. Railroad, 199 Pa. St. 408; Railroad v. Cooper, 88 Tex. 609; Railroad v. Morris, 121 Ga. 484; Roberts v. Railroad, 143 N.C. 176; Wallace v. Casey, 116 N.Y.S. 394; Electric Co. v. Hodges, 6 Ga.App. 470; Coal & Coke Co. v. Benson, 145 Ala. 664; Marlowe v. Bland, 154 N.C. 140; Johnson v. Fuel & Iron Co., 166 Ala. 534; Lytle v. News & Hotel Co., 27 Tex. Civ. App. 530; Doran v. Thomsen, 76 N.J.L. 754; Evers v. Krouse, 70 N.J.L. 653; Railroad v. Currie, 100 Tex. 136; Sinder v. Crawford, 47 Mo.App. 8; Voegeli v. Marble & Granite Co., 49 Mo.App. 643; Meade v. Railroad, 68 Mo.App. 92; Cousins v. Railroad, 66 Mo. 572; Shelby v. Railroad, 141 Mo.App. 514; Clark v. Folscroft, 67 Kan. 446; Douglas v. Stephens, 18 Mo. 362; Snyder v. Railroad, 60 Mo. 413; Jackson v. Railroad, 87 Mo. 422; Farber v. Railroad, 116 Mo. 81; Farber v. Railroad, 32 Mo.App. 378; Whitehead v. Railroad, 22 Mo.App. 60; Reilly v. Railroad, 94 Mo. 600; Stringer v. Railroad, 96 Mo. 299; Haehl v. Railroad, 119 Mo. 325; Walker v. Railroad, 121 Mo. 575; McKeon v. Railroad, 42 Mo. 79; Jones v. Packet Co., 43 Mo.App. 398; Hartman v. Muehlebach, 64 Mo.App. 575; Collette v. Rebori, 107 Mo.App. 711; Sherman v. Railroad, 72 Mo. 62; Drolsagen v. Railroad, 186 Mo. 258; Garretzen v. Duenckel, 50 Mo. 107. (3) The court erred in instructing the jury that in case they found for the plaintiff their verdict should be against both defendants, and in refusing the instruction requested by the appellants that a possible verdict need not be returned against both defendants.

Pross T. Cross and John A. Cross for respondent.

(1) The case is not removable. Lanning v. Railroad, 196 Mo. 656; Stotler v. Railroad, 200 Mo. 118; Johnson v. Railroad, 203 Mo. 398; Railroad v. Schwyhart, 227 U.S. 184; Railroad v. Willard, 220 U.S. 413; Railroad v. Miller, 217 U.S. 209; Railroad v. Sheegog, 215 U.S. 308; Railroad v. Thompson, 200 U.S. 206; Railroad v. Bohon, 200 U.S. 221; Railroad v. Dixon, 179 U.S. 131; Railroad v. Carson, 194 U.S. 136; Powers v. Railroad, 169 U.S. 92. On removal, the only question to consider is whether there was a real intention to get a joint judgment, and whether there was a colorable ground for it shown as the record stood when the removal was denied. Railroad v. Schwyhart, 227 U.S. 184. Under the petition and the law, unless plaintiff obtained a judgment against the servant defendant, he could not recover against the railway company, and plaintiff will be presumed to have joined the servant in good faith, and with the intent to get a joint judgment. McGinnis v. Railway, 200 Mo. 347. All doubts are to be resolved in favor of the jurisdiction of the State court. No presumption can be indulged in favor of the jurisdiction of the Federal court. Railroad v. Davidson, 157 U.S. 208; Hanrick v. Hanrick, 153 U.S. 192; Shaw v. Mineral Co., 145 U.S. 444. The State court is not ousted of jurisdiction unless the cause is properly removable. Federal jurisdiction cannot be inferred, but it must appear positively upon the face of the pleadings. Hanford v. Davis, 163 U.S. 273; Bors v. Preston, 111 U.S. 252; Mansfield v. Swan, 109 U.S. 278; Steamship Co. v. Tugman, 106 U.S. 118; Railroad v. Carson, 194 U.S. 138. The joint liability of the defendant under the pleadings is a matter of State law, and the decision of the highest court of the State will not be reversed by the Federal Supreme Court on the question of fraudulent joinder to prevent removal. Railroad v. Schwyhart, 227 U.S. 184. (2) Appellants' demurrer was properly overruled. The railway is liable for the wrongful acts of its conductor in kicking the boy from the train. The ejection of trespassers is within the line of the duties of the conductor. The fact that the conductor performed the ejection in a cruel, malicious or criminal manner does not relieve the master. The question was one for the jury. Whitehead v. Railroad, 99 Mo. 264; Travers v. Railroad, 63 Mo. 421; Perkins v. Railroad, 55 Mo. 204; Farber v. Railroad, 139 Mo. 272; Farber v. Railroad, 116 Mo. 93; Merrielees v. Railroad, 163 Mo. 270; Haehl v. Railroad, 119 Mo. 325; Brill v. Eddy, 115 Mo. 596; Krueger v. Railroad, 94 Mo.App. 458; Krueger v. Railroad, 84 Mo.App. 358; Brenna v. Railroad, 72 Mo.App. 107; Canfield v. Railroad, 59 Mo.App. 354; Railroad v. Anderson, 82 Tex. 516; Railroad v. Bender, 24 Tex. Civ. App. 133; Ramsden v. Railroad, 104 Mass. 117; Schutz v. Railroad, 89 N.Y. 242; Sanders v. Railroad, 90 Ill.App. 582; Rowell v. Railroad, 68 N.H. 358; Barrett v. Railroad, 106 Minn. 51; Penas v. Railroad, 112 Minn. 203; Railroad v. Godkin, 104 Ga. 655; Railroad v. Kelly, 36 Kan. 655; Railroad v. Brown, 123 Ill. 162; Railroad v. West, 125 Ill. 320; Dillingham v. Russell, 73 Tex. 47; Railroad v. Hendricks, 48 Ark. 177; Dwinelle v. Railroad, 120 N.Y. 117; Perigo v. Railroad, 55 Iowa, 326; Rounds v. Railroad, 64 N.Y. 129; Railroad v. Savage, 110 Ind. 156; Railroad v. Vandiver, 42 Pa. St. 365; Railroad v. Marion, 64 Iowa, 568; Houston v. Railroad, 36 Tex. Civ. App. 165; Railroad v. Watson, 89 Ga. 110; Railroad v. Norris, 17 Ind.App. 189; Hamilton v. Railroad, 119 Iowa, 650; 33 Cyc. 863. (3) There was no error in the matter of instructions. Plaintiff's instruction number 1 set out facts, which, if found true, entitled plaintiff to a judgment against both defendants, and it was proper for the court to so instruct the jury. The master could not be liable without the servant. McGinnis v. Railroad, 200 Mo. 347. Furthermore, such error, if any there was, was invited by the appellants, and they will not now be permitted to complain. Reilly v. Railroad, 94 Mo. 611; Thorp v. Railroad, 89 Mo. 615; Holmes v. Braidwood, 82 Mo. 610; Smith v. Culligan, 74 Mo. 288.

Graves, Brown, Bond and Faris, JJ., concur; Woodson and Walker, JJ., dissent, Woodson, J., dissents in an opinion filed.

OPINION

In Banc.

LAMM C. J.

Suing for personal injuries in negligently ejecting plaintiff from defendant railway company's freight train, a jury returned him a verdict for $ 8500 in the Clinton Circuit Court. From a judgment following that verdict, both defendants appeal, raising four questions only, viz.:

First: The State court lost jurisdiction on the corporate defendant's filing a petition for removal to the Federal court, hence the judgment is coram non judice.

Second: There was reversible error in not sustaining a demurrer to the evidence at the close of plaintiff's case in chief, and, finally, in refusing to direct a verdict in favor of the corporate defendant at the close of the whole case.

Third: And similar error in admitting improper expert testimony.

Fourth And similar error in instructing the jury that if they found for plaintiff to find against...