65 F.2d 891 | 8th Cir. | 1933
There was a collision in the nighttime between the automobile operated by the plaintiff’s intestate and a Rock Island switch engine on a crossing in the city of Little Rock, and the plaintiff, living in Arkansas, sued the railroad company and its resident hostler engineer jointly in the state court for the resultant death of her husband, setting up that her husband stopped, looked, and listened and was careful, but the engine speeded on to the crossing without bells, lights, whistles, or lookout. The nonresident railroad company removed to the federal court, claiming that the hostler engineer who was operating its engine was fraudulently joined to defeat the jurisdiction, and that there was no honest intention to make a case against him. The plaintiff filed her motion to remand which was denied by the trial court, and on the trial of the case there was a directed verdict for the defendants. The plaintiff appeals, and her first assignment of error is “over-ruling plaintiff’s motion to remand this cause to the state, court for trial.”
As no bill of exceptions preserving the testimony taken on the motion to remand has been brought up, we consider only the sufficiency of the petition for removal to sustain the jurisdiction. McCuing v. Bovay (C. C. A.) 60 F.(2d) 375.
Such a controversy as is thus sought to be presented in the petition for removal cannot be tried out by the federal judge in removal proceedings. The federal court has power to eliminate or disregard a sham defendant who has been fraudulentjy joined to defeat jurisdiction, or recklessly so joined, but the kind of a case in which it may do so is clearly indicated in Wilson v. Republic Iron Co., 257 U. S. 97, 42 S. Ct. 35, 66 L. Ed. 144; Chesapeake & Ohio Ry. v. Cockrell, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; and Wecker v. National Enameling & Stamping Co., 294 U. S. 176, 27 S. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757. Where it clearly appears that the resident joined as a defendant preventing removal had nothing to do with the accident sued upon, or no real connection with the tort, and that he has been included in the suit in bad faith or in reckless disregard of the truth and there are facts presented which rightly lead to that conclusion, apart from the pleader’s deductions, he may be • found to be a sham defendant and disregarded for the purpose of jurisdiction. But when it is admitted, -as in this petition for removal, that the resident defendant was the hostler engineer of the company, whose operation of the switch engine brought it into collision with the plaintiff’s intestate resulting in the death, and there are no facts to clearly prove fraud in the joinder, there is no way to settle the issue as to whose fault the accident was except upon trial of the case before a jury in the court having jurisdiction. The difference in the standards of liability for the company and for the engineer is immaterial. If the plaintiff’s version of the accident, as set out in her petition, should be sustained, she would be entitled to recover against both the company and the engineer jointly, as prayed. If the company’s version, as set out in its petition for removal and its answer, is sustained, the plaintiff could recover against neither of the defendants; but outside of deductions interpolated in the petition for removal, there are no facts to clearly show that she did not intend to honestly try to recover against both jointly.
Such being the situation presented to the trial court by the petition for removal and the motion to remand, the ease should have been remanded to the state eourt and should now be reversed, with direction to that effect.