145 Ky. 209 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
This action was brought to recover damages for the death of E. L. Haynes, a fireman on appellee’s railway,
“And in the line of his employment and duties as such, the boiler and engine exploded, and threw great quantities of hot steam, water and other matter upon his body, scalding and burning him so badly that he soon thereafter died from the effects thereof; and the said explosion of the boiler and engine resulted from and was immediately caused by serious and dangerous defects on and in the same, and that but for which defective and dangerous condition of the boiler and engine, and its attachments, the same would not have exploded, or the intestate received the injuries stated. They state that the dangerous and defective condition of the boiler and engine and its attachments were well known to the defendants, the Cincinnati, New Orleans & Texas Pacific Bail-way Company,- and William Hudson, the engineer in charge of the engine and superior to Haynes in point of service, or could have been known to them by the exercise of ordinary care in time to have prevented the explosion ; and that the dangerous and defective condition of the engine and boiler and attachments was unknown to the deceased, and could not by the exercise'of ordinary care have been known to him in time to have prevented the injuries and death aforesaid. They state that the accident above set forth and described, and the death of their intestate, H. L. Haynes, was caused by the gross carelessness and negligence and wrongful acts of the defendants, and that their said negligence and carelessness was joint and concurrent.”
In an amended petition the law of Tennessee setting out the circumstances under which damages may be recovered in actions like this was pleaded, and it was subsequently agreed—
“That under the laws of the State of Tennessee and in force at the time of the infliction of the injuries of plaintiffs’ intestate referred to and complained of in the petition, and still in force, an engineman and fireman in charge of and operating a locomotive engine of a railroad company or corporation operating a railroad in said State, and while such engine is being operated therein, such engineman and fireman are fellow servants, and the*212 railroad company or corporation so owning and operating said railway engine and railroad and in whose service the engineman and fireman are at the time -engaged is not liable for any injury or death inflicted upon either said engineman or fireman by reason of any negligent or wrongful act upon the part of the other; and that if plaintiffs’ intestate received the injuries complained of as a result of the negligent management and operation of the engine by the engineer, the defendant railway company is not liable therefor.”
In due time and in proper form th-e railway company, a foreign corporation, filed its petition, accompanied by bond, and moved the court to transfer the case to the federal court, upon the ground stated in the removal petition .that the joinder -of the resident engineer was fraudulent and for the purpose of depriving the non-resident defendant of its right to have the action removed. This motion was overruled, and afterwards the defendants filed separate answers-, traversing the averments of the petition and pleading contributory negligence. The railway company also pleaded that as under the laws of Tennessee the engineer and fireman were fellow servants, it was not liable if the injury to the fireman was caused by the negligence of the engineer.
Upon the conclusion of the evidence for plaintiff the court on motion of the engineer instructed the jury to find a verdict in his favor. Immediately upon this motion being sustained, counsel for the railway company again offered to file the petition and bond for the removal that had been theretofore filed and made a part of .the record, and moved the court to enter an -order removing the case to the Circuit Court of the United S-tates for the Eastern District of Kentucky, and this motion over the objection of counsel for the plaintiffs was sustained.
This appeal is prosecuted from the order of the court directing the jury to find a verdict in favor of Hudson, the engineer, and from the order removing the action against the railway company to .the United States Circuit Court.
The accident happened in this way — the engine on which Haynes was firing was the second engine in a double-header freight train going south from Somerset. The train left Somerset at 9:30 in the morning, and a little after twelve o ’clock that night, and while the train was running, the crown-sheet blew out and the escaping steam and water scalded the fireman so badly that he
The road foreman of engines, wh-os-e duty it was to inspect engines, was introduced as a witness, for the plaintiff and testified in substance that a month or so before this accident the crown-sheet on this engine had been burned, but that it was repaired and in good condition when it went out on this trip.
Neil Silvers, who had formerly been an engineer on this road, was introduced as a witness and said that if the crown-sheet of this engine had been burned out and repaired, it would not be as substantial as it was before.
In short, the evidence showed this state of facts: That the company direct's the engineer what engine to take out, and it is the duty of the engineer to inspect the engine and see that it is equipped with all the necessary implements and machinery and in good condition. That Hudson, the engineer, did this before starting out with this engine, and so far as he knew or could tell the engine was in good condition when he left Somerset with it. That there were two steam, gauges on this engine, one on the engineer’s side and one on the fireman’s side, and it was the duty of both engineer and fireman to notice these steam gauges and see that the proper amount of steam was kept up, and a sufficient quantity of water kept in the-boiler. That sometime after leaving Somerset a pane in the cab window blew out, or was shaken out, leaving the space open, and the wind coming in this opening prevented the lamp at the steam gauge from being lighted on the engineer’s side. That the fireman knew of this condi
Whatever may be the rule in other jurisdictions, it is well established in this that when it appears during the trial of a case against a resident and non-resident defendant that there is a failure of proof against the resident defendant, the non-resident defendant may when this condition arises renew a motion to transfer on the ground of fraudulent joinder previously and in due time made. Dudley v. Illinois Central R. Co., 127 Ky., 221; 13 L. R. A.,
“Was a ruling on the merits and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the case then removable, and thereby to enable the other defendants to prevent plaintiff from taking a verdict against them. The right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried. As we have said, the contention that the railway company was fraudulently joined as a defendant had been disposed of by the circuit court. But, assuming, without deciding,*220 that that contention could have been properly renewed, under the circumstances it is sufficient to say that the record before us' does not sustain it.”
In Kansas City Suburban Ry. Co. v. Hermon, 187 U.S., 63, 47. L. Ed., 63, the suit was against a resident and non-resident defendant. A motion to remove was made by the non-resident upon grounds that did not involve the question of fraudulent joinder. The motion being denied, the non-resident defendant filed a transcript of the record in the Circuit Court of the United States, in which court a motion to remand was sustained. Afterwards, upon the trial in the State court a verdict was directed by the trial court in favor of the resident defendant, and thereupon the non-resident defendant offered a second petition for removal, charging a fraudulent joinder. When this petition was filed, the plaintiff without objection filed an af fidavit denying that the joinder was fraudulent, and averring that when the petition was filed he believed in good faith he had and in fact did have a joint cause of action against both the defendant’s, but that on account of the inability to. obtain witnesses he was unable to present the state of facts he had in his possession when the petition was filed. The application for removal was overruled, and judgment being rendered against the non-resident, it appealed. In holding that the trial court properly refused to remove the case, the court said:
“The first petition in terms raised no issue of fraudulent joinder, but the second petition did. Was that issue seasonably raised, and if so, ought the case to have been removed? The second petition did not state when petitioner was first informed of the alleged fraud, but left it to inference that it was not until after the plaintiff had introduced his evidence, notwithstanding the averments in the first petition. But, apart from this, the averments of fraud were specifically denied, and so far as the record discloses the petitioner who had the affirmative of the issue failed to make out his case. * * * Nor was the evidence introduced on plaintiff’s behalf and demurred to made part of the record, and the bare fact that the trial court held it insufficient to justify a verdict against the terminal company was not conclusive of bad faith. The trial court may have erred in its ruling, or there may have been evidence which though insufficient to sustain a verdict would have shown the plaintiff had reasonable ground for a bona fide belief in the liability of both defendants. In these circumstances the case comes within*221 Smithson v. Whitcomb, and the judgment must be affirmed. ”
In Weckler v. National Enameling Co., 204 U. S., 176, 51 L. Ed., 430, Weckler brought an action in the State court against the National Enameling Company, a nonresident corporation, and Schenck and Wettengel, individuals and residents of the State in which the action was brought. In due time, the corporation filed its removal petition, charging a fraudulent joinder of the resident defendants. Ah order of removal was made, and the motion to remand overruled; thereupon the plaintiff prosecuted an appeal from the United States Circuit Court to the Supreme Court of the United States. No evidence was heard in the Circuit Court but affidavits were filed in support of the averments of the removal petition, and also controverting affidavits by the plaintiff. Upon these affidavits the Circuit Court reached the conclusion that considered with the complaint they showed conclusively an attempt to defeat the jurisdiction of the federal court. In affirming the judgment of the Circuit Court, the Supreme Court said:
“While the plaintiff in good faith may proceed in the State courts upon a cause of action wMch he alleges to be joint,_ it is equally true that the federal court should not sanction devices intended to prevent a removal to federal courts where one has that right, and should be equally as vigilant to protect the right to- proceed in the federal court-as to permit the State courts in proper cases to retain their own jurisdiction.”
These cases, especially the WecMer case decided subsequently to the Whitcomb case, we think sustain our practice, and it is clear that the WMtcomb case is not in conflict with it; nor have we been furnished with any authority that is. It will be conceded that if the joinder was fraudulent, and not in good faith, the case should be transferred; but counsel insists that the question of whether or not the joinder is fraudulent is to be determined alone by the averments of the petition. To this we do not agree. The attorney who files a petition may believe in good faith that he has a joint cause of action, and be entirely free from any purpose to practice a fraud, and yet as a matter -of law he might be altogether wrong in his opinion. Whether the joinder is legally fraudulent or in good faith, is to be determined by the facts appearing in the record and not solely by the averments of the petition. The. pleader is presumed to know when he files
Wherefore, the judgment is affirmed.