128 F. 85 | U.S. Circuit Court for the District of Western Missouri | 1904
This controversy arises on a' motion to remand, combined with an answer in the nature of a plea iii abatement. This suit was instituted in the state circuit court of Jackson county, Mo., and was removed therefrom to this court on the petition of the defendant the Chicago, Rock Island & Pacific Railway Company on the ground that the cause of action presents a separable controversy; the said railroad company being a nonresident citizen, while the plaintiff and the defendant Samuel Hanna are resident citizens of the state of Missouri. The petition for removal further alleged that the plaintiff had no reasonable ground upon which to base a cause of action for recovery against the defendant .Hanna, and that, according to the petition, the defendant railway company was responsible alone for the cause of action. The petition then alleges that the said Hanna was joined as a defendant for the sole and fraudulent purpose of preventing the defendant from removing the action from the state court, and for the sole purpose of fraudulently defeating the jurisdiction of said, United States court.
After the hearing of said motion and the issue on removal, the defendant railway company, by leave of court, was permitted to amend the fourth paragraph of the petition for removal, which amendment alleges, as did the original petition, that the cause of action against the defendants is separable, and omits the statement in the original petition that it discloses no ground of recovery against the defendant Hanna,' and contains the same allegation, in effect, that said Hanna was joined as a codefendant for the fraudulent purpose of defeating the removal
This question of the right to amend the petition for removal in this court has recently been discussed and determined by Mr. Justice Brewer, of the Supreme Court, in Kinney v. Columbia Savings & Roan Association, 24 Sup. Ct. 30, 48 L. Ed. -. It is decisive as to the right to make the amendment in question.
Indeed, the amendment to the petition for removal in this case, in legal effect, is little different from the original petition. While the original petition for removal averred that the petition did not show any grounds of recovery as against Samuel Hanna, and did show one against the defendant company, that was not the statement of a fact, but was a mere legal conclusion, drawn by the remover from the allegations of the petition. If it was a false conclusion in point of law, its omission from the amended petition is quite immaterial. The original petition contained the essential averment that the cause of action as to the defendant railway company was separable from that against the defendant Hanna, and that Hanna, the local defendant, was joined as a codefendant for the fraudulent purpose of preventing the nonresident defendant from removing the case into this court. The issue, therefore, on the motion to remand, is as to whether or not the petition on its face shows, as matter of law, that the cause of action against the defendants is joint, while the issue on the allegation that Hanna, the local defendant, was joined as a codefcndant for the sole purpose of preventing the defendant railway company from femoving the cause into this court presents an issue of fact, to be determined by the court on the plea.
It is to be conceded to plaintiff’s contention that if, as a matter of law, he has a joint cause of action against the defendants, he had a right to sue them jointly, no matter if lie did entertain the desire and purpose to prevent the defendant railway company from removing the case. On the other hand, if the plaintiff in the petition has alleged any fact intended to show a joint cause of action against both defendants, which the plaintiff at the time knew, or had reason to believe, was not true, that fact, under the allegations of the petition for removal, can he inquired into and determined on issue raised on the plea to the petition for removal. Union Terminal R. Co. v. Chicago, B. & Q. R. R. Co. (C. C.) 119 Fed. 209.
I will not attempt a résumé of the now familiar decision known as the “Dixon Case,” reported in 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, as nothing determined by me here conflicts with what was really in contest in that case. The critical and clear analysis given of the Dixon Case by Judge Amidon in Helms v. Northern Pac. Ry. Co. et. al. (C. C.) 120 Fed. 389, leaves little need of further exposition.
Since the publication of the decision in the Dixon Case the practice of attorneys in personal injury cases, in joining a local resident defendant, like an engineer, brakeman, or other employé, with the nonresident railroad company, to prevent the removal by the railroad company from the state to the United States’ court, is becoming, so universal as to invite the courts to closest scrutiny to- see whether, in fact and law, there actually exists a joint cause of action, Or merely a sini-
“It would be a very dangerous doctrine — one utterly destructive of the right, which a man has to go into the federal courts on account of his citizenship — if the plaintiff in the ease, in instituting his suit, can, without any right or reason or just cause, join persons who have not the requisite citizenship, and thereby destroy the rights of parties in federal courts. We must therefore be astute not to permit devices to become successful which are used for the very purpose of destroying that right”
If this growing practice be further extended, under a latitudinarian construction, beyond what was really decided in the Dixon Case, and those in’ consonance therewith, the practical' result is to be a denial to nonresident corporations of the right of removal from the local to the federal courts. The persistent insistence of attorneys for such plaintiffs is that just in so much as, by mere allegation in the petition, a joint cause of action can be apparently stated, regardless of the motive of the pleader and the underlying facts, they may effectually cut off. even a technical analysis of the petition, to see whether ½ point of law a joint cause of action is stated, and any resort to evidence in ' pais on the issue of removal and remand. But the right and the duty of the court are well recognized to examine the petition by its “four corners,” to see if a joint cause of action is stated; for, no matter how designedly and repetitiously the pleader may assert that “the defendants” did so and so, such assentations will be treated as a mere brutum fulmen, if, taking the facts as a whole stated in the petition, they disclose, in contemplation of law, a separable cause of action against the defendants. As held by the Supreme Court of this state, the allegation of negligence on the part of the defendants in general terms is treated as mere surplusage — words without meaning — when preceded or followed by specific allegations of specific acts of negligence. Fuchs v. City of St. Louis, 167 Mo. 620, 640, 67 S. W. 610, 57 L. R. A. 136; Chitty v. Railway, 148 Mo. 64-75, 49 S. W. 868; McCarty v. Hotel Co., 144 Mo. 397, 402, 46 S. W. 172.
And as already stated, even where the petition on its face alleges a joint cause of action, or some joint acts of the defendants, the nonresident defendant may challenge the truth of it in his petition for removal by alleging that it was inserted for the purpose of preventing the exercise of the right of removal by the nonresident defendant, and this issue of fact is to be determined by the United States court. And if any material fact alleged in the petition, for the purpose of showing a joint cause of action, be found to be untrue in fact, and such fact was known to the pleader, or could have been known to him by the exercise of that inquiry which the law exacts, the court is warranted in drawing the conclusion, as matter of law, that the purpose was to prevent the right of removal by the nonresident defendant. Union Terminal Railway Co. v. Chicago, B. & Q. R. R. Co. (C. C.) 119 Fed., loc. cit. 213.
It is to be observed, in the first place, that if it be conceded that it was the duty of the defendant railway company to establish a schedule time table for the running of trains over the road at the point in question, to establish proper station boundaries at the yard limits at Harlem, and to set up signs, posts, and visible objects to indicate the yard limits of said station, and that it failed of its duty in this respect, what possible connection had the defendant Hanna, an engineer, with
Likewise of the allegation made in the petition that the said “corporate defendant carelessly, negligently, and recklessly caused, ordered, directed, and permitted its agents and servants, then and there running and operating said engine and passenger train, to run the same at a very high and dangerous rate of speed, to wit, at 50 miles per hour, in order to make up the time they had so carelessly and negligently lost.” If the defendant Hanna, the servant, in obedience to such command of the master, ran the train coming from Cameron Junction at a speed of 50 miles an hour, upon what principle of law can it be said that the servant could be held jointly with the master for merely executing the positive command of the master? In this day of “rapid transit” the law recognizes the right of railroad companies to run at a high rate of speed, and no negligence is imputable, even as against the company, per se, for running at such rate of speed, in the absence of some averment that the condition of the track and the situation was such as to render fast running imminently dangerous, and that this fact was known to the company. Without more, “the primary duty of the servant is obedience,- and it is not to be expected that he will, upon mere imaginary danger, of which he may be conscious, assert his right to relinquish his employment.” The law does not exact, under such circumstances, the duty of the servant to disregard directions of the master, thereby running the risk of the loss of his position. See Flynn v. Kansas City, etc., Railroad Company, 78 Mo. 195, 204, 205, 47 Am. Rep. 99. And, if he executed such command without any carelessness or negligence on his part, he would mot be answerable to third parties, unless it were shown that the engineer knew, or had reason to believe, that such rate of speed was hazardous and likely to occasion injury to some third party. All the law would exact of him would be to quicken his apprehension and increase his vigilance in proportion to the obvious risk in so running his train. Nothing of the kind is alleged in this petition, and therefore no joint cause of action is thereby shown by the naked averment that the master ordered and directed the given rate of speed.
•Superadded to this, the allegation of the petition itself, showing that the defendant company was running its cars over the railroad tracks owned by the Hannibal & St. Joseph Railroad Company, by agreement with the- owner of the road, coupled with the evidence on the hearing of the issues joined bn the motion to remand, clearly enough show that the defendant company had nothing to do with the making of time schedules or directing the running of its cars between Cameron Junction' and Kansas City, and that it had nothing to do with the making of regulations establishing signals or governing in any way the entry of
In law notice is actual when the party sought to be affected by it knows the particular fact in question, “or is conscious of having the means of knowing it, although he may not employ the means iu his possession forlhe purpose of gaining further information, and it embraces all degrees, direct and indirect, of evidence.” Rhodes et al. v. Outcalt et al., 48 Mo. 370. Judge Sanborn, in Percy v. Cockrill, 53 Fed. 875, 4 C. C. A. 73, 10 U. S. App. 574, expressed the rule as follows :
‘•Notice of facts and circumstances which would put a man of ordinary intelligence and prudence on inquiry is, in the eye, of the law, equivalent t.o knowledge of all the facts a reasonably diligent inquiry would disclose. ‘Whatever is notice enough to excite attention, and put the party on his guard, and call for inquiry, is notice of everything to which such inquiry might have led. Where a person has sufficient information to lead him to a fact, he shall be deemed conversant with it.’ ”
When the plaintiff’s attorney alleged in his petition that the defendant company was running its cars over the track of the Hannibal & St. Joseph Railroad Conqiaiiy under an agreement with it, taken iu connection with the testimony on the hearing, he was in possession of a most essential fact, and the least inquiry on his part of the officers of the Hannibal & St. Joseph Railroad Company, his old client, would have enabled him to see the agreement itself or learned its purport.
Besides, there are some things so obvious to the common experience and observation of men in certain relations that the law will not permit them to shut their eyes and say, “I do not know because I do not choose to look;” or, as Judge Story expressed it, “One cannot wink so hard as not to see.” Every sensible man, and especially an attorney of long standing, of superior intelligence, like the plaintiff’s principal attorney," for many years connected with the legal department of á railroad# must be presumed to know the physical' fact that two separate railroad companies, operating their trains over, the same line, .must be
The knowledge of the attorney at the time he drew the petition is imputable to the client. The Distilled Spirits, 11 Wall. 356, 367, 20 L. Ed. 167; Hart v. F. & M. Bank, 33 Vt. 252; Law Register, May, 1872, p. 144-
When, therefore, the plaintiff predicated an action of negligence of the. defendant company on the failure to prescribe proper rules and regulations for its trains over the track in question to make a regular schedule time, and for failure to maintain proper safeguards and signals in and about the switch yards at Harlem, he knew these were duties not devolving on the defendant railway company, as these were matters over which it had no control, and their insertion in the petition warranted the allegation in the petition for removal that it was done for the purpose of showing a joint cause of action, when coupled with the averments in the petition that the defendants carelessly, negligently, and recklessly did these things, in order to prevent the removal of the case by the nonresident defendant. It should logically follow that as the engineer, Hanna, was running his train between Cameron Junction and Kansas City under the regulations and directions of the Hannibal & St. Joseph Railroad Company as to when he should start and how he should run and where he should stop on the main track and into the switch yard at Harlem, the Rock Island Company could not be held for the manner of running its cars by the engineer at the time and place. As said by the Supreme Court of Iowa in Miller v. Railroad Company, 76 Iowa, 655, 39 N. W. 188, 14 Am. St. Rep. 258:
“It [the train] was not running under any time card or by the direction of any train dispatcher of the defendant. The fact that the engineer, fireman, brakeman, and conductor, who composed the train crew, were retained upon defendant’s pay rolls, and received their wages from the defendant, does not tend to show that the defendant retained any control of the movements of the train.”
So, in Smith v. R. R. Co., 85 Mo. 418, 55 Am. Rep. 380, it was held that inasmuch as the defendant railroad company, over the line where
“The trainmen, though in the permanent employment of the defendant, were, while moving the train from St Louis to Pacific, under the exclusive control and management of the Missouri Pacific, and the engineer and fireman were in the employment of the latter company; yet not an order could the defendant company have given as to the running of that train between St. Louis and Pacific. ⅜ * * It certainly would be an anomaly to hold one responsible for the acts of another, over whom he had no control. Such a principle obtains in no civil action between individuals, and no reason can be assigned why it should apply in suits against corporations.”
In Brady v. R. R. Co., 114 Fed. 107, 52 C. C. A. 48, 57 L. R. A. 712, Judge Sanborn said:
“In an action against an alleged master or principal for the act of his alleged servant or agent, under the maxim respondeat superior, there can be no recovery in the absence of the right and power in the former to command or direct the latter in the performance of the act charged, because in such a case there is no superior to answer.”
The defendant company was without the power to prescribe any schedule time for running its trains when and where the accident occurred. It was without the power to direct the engineer when to start and where to stop, how fast or how slow he should run, how or where he should enter the switch yards, or to make any regulations respecting safeguards or signals in and about the switch yards. There certainly can be no responsibility on its part for any act of the engineer which it was without the power to direct or control. And' if it should be said that the act of the engineer in disregarding the signal given him by the Hannibal & St. Joseph Railroad Company, and recklessly running onto the plaintiff, was so outside of the directions given him by the Hannibal & St. Joseph management as to absolve it from liability for the injury inflicted, and therefore the responsibility ought to be cast upon the owner of the train, which it had placed the engineer in charge of, this accountability must rest entirely upon the rule of respondeat superior, and not upon the ground that the owner is a joint tort feasor.
If we proceed to the further fact, alleged in the petition, that the defendant Hanna “carelessly, recklessly, and negligently disregarded and ran by signals given to warn and advise him of the presence of the switch engine and of the plaintiff upon said main track; that the defendant Ilanna knew of the presence of the plaintiff and his switch engine upon said main track, or by the exercise of the ordinary care in running his engine and train could and would have known thereof; and knowing that switch engines and cars were accustomed to use the main line track in doing the switch work at said yards, etc., carelessly, recklessly, and negligently ran said engine past and by said signals at said high and dangerous rate of speed, and upon, into, and against said switch engine and this plaintiff” — it results that this was the ultimate act and proximate cause of the injury, for which he would be answerable to the plaintiff in an action of trespass vi et armis. And while the defendant company would be liable to the party injured in an action on the case, it would be predicable alone upon the doctrine of
Judge Bliss, in his work on Code Pleading, § 83, says:
“Persons are not jointly liable for a tort merely because they may have some connection with it, even if it may give a several cause of action against them. There must be- a co-operation in fact; ‘there must be some community in the wrongdoing among the parties who are to be united as codefendants; the injury must be in some sense their joint work.’ ”
And Pomeroy, in his work on Code Remedies, at section 307, speaking of the right of the actor to- proceed against the defendants jointly for an injury resulting from negligence, want of skill, fraud, and the like, says:
“In order, however, that the general rule thus stated should apply, and a union of wrongdoers in one action should be possible, there must be some community in the wrongdoing among the parties who are to be united as codefendants; the injury must in some sense be their joint work. It is not enough that the injured party has on certain grounds a cause of action against one for the physical tort done to himself or his property, and has, -on entirely different grounds, a cause of action against another for the same physical tort. There must be something more than the existence of two separate causes of action for the same act or default to enable him to join the two parties liable in the single action. This principle is of universal application.”
The cases holding that the injured party-may sue jointly the master and the servant limit this right to the instance where the injury results merely from the negligence of the servant; that is, the failure to do something which the servant ought to have done, but negligently failed to do.. Even they hold that such action does not lie against the master and servant jointly for a willful injury done by the servant while engaged about the master’s business. This is so held in the leading case of Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507, so frequently cited by the advocates of the right of joint action against the master and the servant. I undertake to say that no well-considered case in modern jurisprudence can be found where it is held that where the servant is not only guilty of an act of negligence, but of an act of positive misfeasance, outside of any imposed duty of the master which directly occasions the injury, he is suable jointly with the master, when the master’s liability springs alone from the doctrine of re-spondeat superior, and not as an active participant in the trespass.
This, it seems to me, must be the law of this case, for the reason that the rule contended for would disregard and overturn a well-settled rule of the common law that there can be no apportionment of contribution among tort feasors. If a recovery can be had in an action against a railroad company and its engineer jointly for the willful and reckless trespass of the engineer in running his train by in spite of a known signal, given to him, and recklessly dashing into another train on the track, injuring its occupants, a judgment therein would conclude both defendants that it was-a joint act of misfeasance
“The master is always liable to third persons for the misfeasances and negligences and omissions of duty of his servant in all cases within the scope of his employment So the principal, In like manner, is liable to third persons for the like misfeasances, negligences, and omissions of dnty of his agent, leaving him to his remedy over against the agent in all cases when the tort is of such a nature as that ho is entitled to compensation.”
It is upon this ground that the Supreme Court of Maine, in Campbell v. Sugar Company, 62 Me. 553, 16 Am. Rep. 503, said:
“The proper adjustment and the final responsibility between them cannot well be effected if one has distinct grounds of action against them- — against the agents for their own negligence, against the principals because the law makes them responsible for the negligence of their agents — is permitted to recover against both in one suit.”
The only innovation made upon this rule in this state is found in section 2870, Rev. St. Mo. 1899, c. 17, entitled “Damages and Contributions in Actions of Tort,” which provides that:
“Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract.”
The effect of this statute is to give to the defendants who are sued jointly “in an action for the redress of a private wrong,” where one of them satisfies the judgment, the right to go upon the codefendant merely for contribution; that is, to compel his codefendant to contribute his proper proportion of the sum paid by him. Even this statute assumes that there is a joint liability among the several defendants ; but it does not touch the common-law rule that where the master has been held to respond in damages for the negligence of the servant, upon grounds of public policy, without any active participation on the master’s part in the wrongful act of the servant, the master is entitled to full restitution for the whole amount he has been compelled to pay out. This criticism does not conflict with the ruling in the Dixon Case, for the reason that there the ground of joint recovery was for a mere negligent act of the servant. In such suit the action is one on the case, the petition on its face disclosing the fact that the sole ground of recovery against the master is because of the doctrine of respondeat superior. A joint judgment, therefore, might not preclude the master’s right of action against the servant for full restitution, as the record probably would not show that the master was an active joint tort-feasor, as it would be in the case at bar.
There is still another view, arising on one of the allegations of this petition, which shows that the cause of action against the defendants
It is expressly held in Lake Shore, etc., Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97, that:
“In actions of tort tlie jury, in addition to the sum awarded by way of compensation' for the plaintiff’s injury, may award exemplary, punitive, or vindictive damages, sometimes called ‘smart money,’ if the defendant has acted wantonly or oppressively, or with such malice as implies a spirit of mischief, or criminal indifference to civil obligations.”
—But that such punitive damages cannot be awarded against the railroad company which did not participate in the offense. The court said:
“A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive, or malicious intent on the part of the agent.”
This for the reason that the accountability of the master in such case arises by reason of the doctrine of respondeat superior.
The provisions of the Missouri statute in such action to entitle the plaintiff to punitive or exemplary damages, requiring that he must malee separate prayers, stating the .amount of compensatory damages and the amount of punitive damages claimed, has no application to the practice in the federal court. Times Publishing Co. v. Carlisle, supra. The plaintiff is entitled to such relief as the facts stated entitle him, regardless of the prayer of the petition.
This court is unwilling, in order to make contribution to these latter-day efforts, in cases like this, to avoid the removal of causes from the state to the United States Circuit Courts, to efface the many ancient landmarks of the common law involved herein, founded, as they are, in wisdom.
The application to have this case remanded is denied.
