228 F. 1010 | D. Or. | 1916
This cause having been removed from the state court to this, the matter now comes up on a motion to remand. The defendant railroad company is a citizen and inhabitant of the state of Utah, but is engaged; in the business of operating a railroad within the county of Hood River, state of Oregon. The defendant Early is its general manager, and is a citizen and resident of the state of Oregon. Plaintiffs complain of injuries sustained by reason of the escape of fire from the railroad company’s right of way.
“The motive of the plaintiff” says the court in Chicago, R. I. & Pac. Ry. v. Schwyhart, 227 U. S. 184, 193, 33 Sup. Ct. 250, 251 (57 L. Ed. 473) “taken by itself, does not affect the right to remove. If there is a joint liability, he has an absolute right to enforce it, whatever the reason - that makes him wish to assert the right.”
The plaintiffs, by an answer to the petition, have traversed completely the allegation that Earl}'’ had nothing to do with the care, control, and management of the right of way, etc., and that the operating department is under the exclusive control and direction of a superintendent, etc. In further support of the petition, Early’s affidavit
It was held in Ches. & Ohio Ry. v. Cockrell, 232 U. S. 146, 152, 34 Sup. Ct. 278, 58 L. Ed. 544, that merely to traverse the allegations of joint liability made on the part of the. plaintiff is not sufficient to show fraud, but 'that facts must be set forth such as compel the conclusion that the joinder is -without right and made in bad faith. This holding has been reaffirmed in a very recent case. Chicago, Rock Island & Pac. Ry. Co. et al. v. Whiteaker, 239 U. S. 421, 36 Sup. Ct. 152, 60 L. Ed.-. If this be so, it must also-be true that, where the defendant attempts to show bad faith by allegations and affidavits, and those allegations and affidavits are completely traversed, bad faith has not been established. In other words, the coürt cannot conclude that the joinder was without right and made in bad faith.
The question whether nonfeasance would acquit Early of joint liability with the railroad company can hardly arise in this proceeding, because the allegations and affidavits tending to show nonfeasance are traversed, and the railroad company’s case in that respect is no’t established. At least, it is not made so clear that the court will presume bad faith on the part of plaintiffs in joining the defendants in the action.
The motion to remand will be allowed.