US SUPREME COURT DECISIONS

While an action commenced in a state court against two defendants, one of whom is a resident and the other a nonresident, may be removed to the Circuit Court of the United States by the nonresident defendant if it can be shown that the cause of action is separable and the resident defendant is joined fraudulently for the purpose of preventing the removal of the cause to the federal court, such removal cannot be had if it does not appear that the resident defendant, is fraudulently joined for such purpose.

This rule will be adhered to even if, on the trial of the action, the lower court holds that no evidence was given by the plaintiff tending to show liability of the resident defendant, and a second application for removal from the state to the federal court has been made and denied after a trial, and the trial court has sustained a demurrer to the evidence as to the resident defendant, and where it appears that the ruling was on the merits and in invitum.

Powers v. Chesapeake & Ohio Railway Company, 169 U. S. 92, distinguished, and Whitcomb v. Smithson, 175 U. S. 635, followed.

Where a fraudulent joinder of defendants is averred by the party petitioning for removal and is specifically denied, the petitioner has the affirmative of the issue.

This was an action brought by Andrew Herman, a minor, by his next friend, in the Court of Common Pleas of Wyandotte County, Kansas, September 18, 1897, against the Union chanrobles.com-red

Page 187 U. S. 64

Terminal Railway Company, a corporation of Kansas, and the Kansas City Suburban Belt Railway Company, a corporation of Missouri, to recover damages for injuries inflicted through their joint or concurrent negligence.

The belt railway company, October 18, 1897, filed a verified petition and bond for removal, in proper form, on the ground of a separable controversy; which petition alleged the controversy between plaintiff and petitioner to be distinct and separable from that between plaintiff and the Union Terminal Railway Company, on these grounds:

"1. Defendant the Union Terminal Railway Company owns, repairs, and maintains the railroad mentioned in plaintiff's petition. Your petitioner has no interest therein, except that it has leased same and pays certain yearly rental for the use of said tracks. All of the locomotives, engines, and cars running over said railroad are the property of your petitioner, or subject to its control. Defendant terminal company has no control over the operation of trains, and has no employees in train service. Defendant the Union Terminal Railway Company is responsible for the condition of the track, and your petitioner, and none other, for the acts and doings of all persons operating trains."

"2. The plaintiff herein has declared upon two distinct causes of action: first, for maintaining a defective switch, and second, for negligent operation of a train of cars, the first of which, if true, is negligence chargeable against defendant the Union Terminal Railway Company, and the second, if true, is negligence chargeable against your petitioner."

"3. The train of cars mentioned in the petition was operated by your petitioner as averred. All of the parties in charge thereof were in your petitioner's employ, and none other."

"4. By reason of the foregoing, your petitioner says that whatever cause of action plaintiff has for negligent operation of said railroad train lies against your petitioner exclusively."

The application for removal was heard February 5, 1898, and, upon argument, denied. The belt company thereupon filed a transcript of the record in the Circuit Court of the United States for the District of Kansas, and plaintiff made a chanrobles.com-red

Page 187 U. S. 65

motion to remand, which was sustained by the circuit court and the cause remanded to the state court "on the ___ day of May, 1898." Each of the two railroad companies defendant then filed its separate demurrer May 28, 1898, assigning as causes misjoinder of parties, and that plaintiff had not stated a cause of action, or facts sufficient to constitute a cause of action, against it. These demurrers were severally overruled, and the defendants severally answered. The cause came on for trial October 18, 1898, and on October 20, at the close of the evidence for plaintiff, each company filed its separate demurrer to the evidence on the ground that the same was not sufficient to establish a cause of action against it. The court sustained the demurrer of the terminal company, the Kansas corporation, and entered judgment in its favor, to which ruling of the court plaintiff at the time excepted, and the court overruled the demurrer of the belt company, the Missouri corporation, to which ruling the belt company excepted. Thereupon, the belt company filed a second verified petition for removal, which, after rehearsing the prior proceedings, thus continued:

"And the defendant further says that no evidence was offered or introduced by plaintiff, or attempt made, to show a cause of action against said Union Terminal Railway Company; that said Union Terminal Railway Company was joined with this defendant fraudulently, and for the sole purpose of preventing a removal of this cause to the circuit court of the United States, and with no purpose or intent of attempting to show any cause of action against it."

"This defendant now here shows to the court that there is a separable controversy, and that the plaintiff's cause of action exists against the defendant alone, and in nowise against the said defendant the Union Terminal Railway Company. That no cause of action ever existed against the defendant the Union Terminal Railway Company, as plaintiff at all times well knew."

In response to this petition, plaintiff filed, without objection, an affidavit which stated, among other things, that it was not true

"that plaintiff joined the Union Terminal Railway Company

Page 187 U. S. 66

as defendant therein fraudulently, or for the purpose of giving this Court jurisdiction of the petitioner, but, on the contrary, plaintiff avers that said action was brought in good faith against both defendants as joint tortfeasors, and that plaintiff believed in good faith that he has a joint cause of action against both defendants, and had subpoenas issued for witnesses to prove directly the responsibilities of the Union Terminal Railway Company for the injuries sustained by plaintiff; but that, on account of the removal of a witness from the state, plaintiff was, at the last moment, unable to obtain certain testimony which, if introduced, would have tended to prove the joint liability of said defendants. That plaintiff has excepted to the ruling of the court sustaining a demurrer to the evidence on the part of the Union Terminal Railway Company in the trial of this case for the purpose of preserving his rights in this action against both of said defendants jointly."

And it was further stated that counsel had relied on the production, on notice which had been given, of

"writings showing the relations existing between the two defendant companies in the operation and maintenance of their lines of railroad where the injuries were received,"

and on an agreement with counsel for both of the defendants to admit the facts as to the relations between said companies, which, when it was too late to adduce other testimony, was not fulfilled.

The application for removal was overruled, and the belt company excepted, but took no bill of exceptions embodying the evidence to which the demurrers had been directed. The trial then proceeded, and resulted in a disagreement of the jury.

Plaintiff subsequently filed an amended petition reducing the damages claimed to less than $2,000, and the cause was again tried, and resulted in a verdict and judgment in favor of plaintiff for $1,500. The cause was carried to the Kansas Court of Appeals and the judgment affirmed, and thence to the Supreme Court of Kansas, with like result. Kansas City Suburban Belt R. Co. v. Herman, 68 P. 46.

A writ of error from this Court was then allowed by the Chief Justice of Kansas, and citation issued to and acknowledged chanrobles.com-red

Page 187 U. S. 67

on behalf of Herman and the Union Terminal Railway Company. The case was submitted on motions to dismiss or affirm.