231 Mo. 474 | Mo. | 1910
The record in this cause has come here in the return of a writ of certiorari issued out of this court to the circuit court of Buchanan county. The relator had filed in that court a suit against the Chicago, Burlington & Quincy Railroad Company and Thomas O'’Phelan for damages for the death of her husband who she alleged in her petition was killed through the joint negligence of the two defendants. In her petition in that case the plaintiff stated that the Chicago, Burlington & Quincy Railroad Company was a corporation organized and incorporated under the laws of Ulinois, owning and operating a railroad in Missouri, and the defendant O'’Phelan was a conductor of one of its passenger trains in this State. The petition also stated that the St. Joseph & Des Moines Railroad Company, the Hannibal & St. Joseph Railroad Company and the Kansas City, St. Joseph and Council Bluffs Railroad Company were corporations organized under the laws of Missouri and that before the dates afterwards mentioned each owned and operated a railroad in this State; that in January, 1901, all those railroad corporations consolidated and transferred the titles to their roads to the Chicago, Burlington & Quincy Company and that company thereupontookpossession of the several railroads owned by the Missouri corporations and has since owned and operated them. The petition sets out the deeds under which the properties were, transferred and the agreements in relation
I. The first and third grounds are substantially the same. The proposition is that on a writ of certiorari the court can only look into the record to discover if the trial court had jurisdiction of the subject and acted within its jurisdiction.
The scope of review of a record brought up by certiorari is not quite so narrow as there stated, that is, it is not limited entirely to a question of jurisdiction, but it may comprehend an error appearing on the face of the record which cannot be reached by appeal or writ of error. In State ex rel. v. Shelton, 154 Mo. 670, this court had before it a record brought up on certiorari which showed on its face that the trial court had jurisdiction, and the actions of that court complained of were such as could have been reviewed on writ of error or appeal, therefore this court quashed the writ of certiorari. There was in that case a learned discussion in the briefs of counsel of the office and scope of the writ of certiorari, and the opinion of the court was written by Judge Brace, wherein on this point, l. c. 691, he said: “Now while certiorari is the
In the case before us the circuit court had jurisdiction to pass on the question of whether, on the showing made, the railroad company had the right to have the cause transferred to the Federal court, and if it had decided the question against the railroad company, retained jurisdiction of the cause and proceeded with it to final judgment, the railroad company could, by a timely bill of exceptions, have preserved the point and, if in the end the judgment had been against it, the ruling of the circuit court on the question of the .right of removal could, on appeal or writ of error, have been reviewed in this court; and if this court affirmed the ruling of the circuit court on the question of removal, the cause could be taken to the Supreme Court of the United States. [Moon on Rem. of Causes-, sec. 180.]
But when the State court makes an order sustaining the application for removal it is equivalent to a refusal to take any further action in the case, it puts the plaintiff out of court, that is, out of that court, yet there is no final judgment. Will an appeal lie from such order? That question must be answered by our State statute. Whether an appeal lies to the State Supreme Court from an order of the State Circuit Court depends entirely on what the State statute says on the subject. No action that the State court can take can either withhold or confer jurisdiction on the Federal court. Under the Act of Congress the filing of
The Act of Congress provides that he may go into the Federal court and move to have the cause remanded, and if his motion is overruled and he loses his suit in the long run he may have the action of the . Federal court reviewed on appeal to the United States Supreme Court. But that is not the forum in which he brought his suit and, unless it is a removable cause, he is entitled to have his cause tried in the State court in the first instance, and not be sent all around the Federal courts before coming back to the State court. Whether it is a removable cause or not is a question in the first instance for the State circuit court, to the extent at least of determining whether the State court will retain jurisdiction, and on that point the party has a right to have the Supreme Court of the State review the ruling of the State circuit court and correct its error, if error there be. Congress has power under the Federal Constitution to declare that, certain causes may be removed from a' State court to a Federal court and prescribe the proceeding by which the removal can be effected and that power Congress has exercised. But beyond prescribing what causes may be removed and the proceeding therefor Congress has not undertaken to prescribe what the State courts shall do; on the contrary, it has* carefully avoided anything like a direction to the State court, and has placed not only the right of removal, but the fact of removal also entirely independent of any order or judgment of the State court. If therefore the State court should make an or
II. Counsel for relators contend that the facts stated in the petition for the plaintiff constitute the Chicago, Burlington & Quincy Railroad Company a Missouri corporation, and that-since those facts are not denied by the .railroad company in its petition to remove, it stands confessing that it is a Missouri corporation, if the legal effect of those facts makes it so.
When a petition for removal is filed on the ground of diversity of citizenship and that fact is denied, the State court has no authority to decide the question, but the Federal court alone has suda authority. A law-writer on this subject has said: “For example, if any question is raised as to the actual citizenship of either of the parties, when the removability of the case depends upon the diversity of their citizenship-, this issue is triable only in the Federal court; the State court must assume that the facts as to citizenship, are as they appear in the record and as they are alleged in the petition for removal; and it .cannot receive and consider any evidence to the contrary.” [Black’s Dillon on Removal, sec. 191.] But in the same section, after referring to apparent conflict between the authorities, the author says: ‘ ‘ But they may be nearly all reconciled, and the true rules evolved, by paying due attention to the difference between questions of fact and questions of law, and to the nature of the questions which present themselves to the State court and the Federal court, respectively, upon an. application for removal.” The conclusion of the author is that if the petition for removal presents a question of law affecting the right of removal, the State court has authority to decide such question.
The learned counsel who drew the petition in the case sought to be removed seem to have had in mind the idea last above expressed, and therefore they put into that petition statements of facts the- legal effect of
In their brief, counsel for the relator say that the defendant in its petition for removal did not deny the facts pleaded in the plaintiff’s petition relating to the alleged consolidation, and that therefore they stand admitted, and hence only a question of law is presented. But those statements were out of place in the plaintiff’s petition, therefore the defendant did not have to deny them. The plaintiff in her petition had the right to state only facts constituting her cause of action; all else is surplusage. Questions relating to the right of removal do not arise until a petition for removal is filed and then if the showing made by the petition for re
Leaving’ out of view the facts stated in the plaintiff’s petition, which it is contended constitute the defendant railroad company a Missouri corporation, the record did not present to the State court on the subject of citizenship a mere question of law which it was the province of that court to decide. Therefore, on the face of the record the circuit court was justified in assuming for the time being that the Chicago, Burlington & Quincy Railroad Company was an Illinois corporation and a citizen of that State.
III. One other point remains to be considered. Is there in the suit of Mary Iba against this railroad company and .the individual defendant, the conductor, 'a separable controversy! In its petition for removal the railroad company says that if the petition states any cause of action against it, it is under section 2864, Revised Statutes 1899, in which the conductor is not involved, and that if there is any cause of action stated against the conductor it is under sections 2865 and 2866, in which the railroad company is not concerned. If that is the correct interpretation of the plaintiff’s petition the cause was removable on the separable controversy theory, otherwise not.
The plaintiff’s petition states that the defendant corporation owned and operated arailroad in this State, that her husband purchased a ticket for his passage from Easton, a station on the road, to St. Joséph; that the train on which he was to go arrived at Easton on its way to St. Joseph, and her husband was about to
Thus far the petition states facts showing a negligent movement of the train, and if within the body of the petition can be found a statement of facts showing that the death of the plaintiff’s husband was caused by that negligence, then we must conclude, that the petition states a cause of action against the corporation under section 2864,. Revised Statutes 1899 (now sec. 5425, R. S. 1909, amended), and if so the individual defendant, the conductor, is not liable in that cause of action, but the railroad company alone is liable.
But there are no facts stated in the petition going to show that the negligent movement of the train alone caused the death. On the contrary the facts stated show that the plaintiff’s husband was in a comparatively safe place on the step of the car, holding the handrail, in the act of going on, would not have been hurt by the moving of the train and would not have come in contact with the freight truck which was the cause of his death, if he had been left to go on. What brought the body of the plaintiff’s husband in contact with the freight truck was the alleged negligent act of the conductor in taking hold of him and pulling him backward until his body was brought in line with the truck. The truck being six inches from the edge of the platform, the plaintiff’s husband must have been pulled backward at least six inches plus the distance, whatever that may be, between the edge of the platform and the outer line of the cars in the train. The averment in the petition is clear that the accident was caused by the act of the conductor taking hold of the plaintiff’s husband and pulling him into the line of danger, otherwise the alleged negligent movement of
‘ ‘ That at said time the defendant, Thomas 0 ’Phelan, conductor of said train, was standing on the depot platform at said place and had caused the said train to begin to move and that while plaintiff’s said husband was standing on the lower step' of the said passenger coach, the conductor called out to him in a loud voice to get off of the train and moved toward this plaintiff’s said husband and took hold of him and pulled him backward so as to cause his body to sway backward off of the steps of the said coach, and that the said conductor pulled this plaintiff’s husband backward from the said train and interfered with and prevented this plaintiff’s said husband from going up> the steps of the said coach and inside of the said train, by his words and acts aforesaid. That the said defendant, Thomas O’Phelan, conductor of said train, also pushed this plaintiff’s said husband forward into the steps of the said train and caused his body to sway forward and then backward, while the plaintiff’s said husband was in the position aforesaid. That immediately thereafter, the said defendant, Thomas 0 ’Phelan, conductor of the said train, and agent, servant and employee of defendant as above stated, pulled this plaintiff’s said husband backward and forward as above stated and caused his body to sway forward and backward, while in the position above stated, that the body of this plaintiff’s husband struck one end of the large freight truck above mentioned, while- standing in the place and position above described, and that by striking the end of the said truck,- the body of this plaintiff’s said husband was again knocked forward and caused to sway and strike the said truck again, and thereby and on account of the actions of the said conductor, and the defendant, Chicago, Burlington & Quincy Railroad Company, and on account of their joint carelessness and negligence as herein specifically stated and de*492 tailed, this plaintiff’s said husband was caused to lose his balance upon the steps of the said train and to fall from the coach of the said train between the said depot platform and the said train, upon the ground and under the wheels of said train, where this plaintiff’s said husband was dragged and crushed under the wheels of the said train, and on said railroad tracks,' from which he instantly died. ”
The petition states no cause of action under section 2864, Revised Statutes 1899', but does state a joint cause of action against the railroad company and defendant O’Phelan, the conductor, therefore there is no “separable controversy” in the case. There is but one cause of action, and that is against both defendants, and it is under sections 2865 and 2866, Revised Statutes 1899, now sections 5426 and 5427, Revised Statutes 1909. There is nothing in what we now say that is in conflict with what was said in Casey v. Railway, 205 Mo. 721, to which we are referred. It was in that case held that if the death was caused by the negligent operation of the defendant’s instrument of transportation, the corporation was liable under section 2864, Revised Statutes 1899, but if it was caused by defendant’s negligence otherwise, either its own negligence or that of its servant, it was liable under sections 2865 and 2866, now sections 5426 and 5427, Revised Statutes 1909'. Under those two sections the master is liable for the negligent act of his servant and the servant is also liable for his own negligent act.
The question of whether there is a separable controversy so as to entitle the party to remove, must be determined by the cause of action stated in the plaintiff’s petition. [Black’s Dillon on Rem., sec. 141.] That question in the first instance must be decided by the State court. [Id., sec. 191.] “If the State court decides that the removal papers, in connection with the record, fail to show that the cause is removable, it will
The railroad’s application for the removal of this cause is based (besides diverse citizenship) on the theory that in the cause of action stated in the plaintiff’s petition there is, as to it, a separable controversy,. and that is the interpretation the circuit court must have given to the plaintiff’s petition, but that is a misconception. That is the only error we find in the record, but that is vital. There being no separable controversy the cause is not removable.
It follows that the circuit court committed error in making the order transferring the cause. Respondent’s motion therefore to quash the writ of certiorari is overruled, and the order of the circuit court of date January 29, 1910, sustaining the petition for removal and transferring the cause is quashed, but the costs are not adjudged against respondent.
