POORMAN v. CLEVELAND, C., C. & ST. L. RY. CO. et al. 1. RAILROADS ~482(2)—FIRES "CARE AND MANAGEMENT OF ENGINE." The engineer is the person having the "care and management of the engine," within Hurd's Rev. St. Ill. 1917, c. 114, § 103, providing that the fact that a fire was communicated shall be prima facie evidence of negligence of those having the care and management of the engine. 2. RAILROADS 267-FIRES-ACTION-PARTIES. In view of Hurd's Rev. St. Ill. 1917, c. 114, § 103, declaring that the fact a fire is set out by a locomotive shall be prima facie evidence of negligence, held that, in an action for damages from fire, the engineer was properly made a defendant. 3. REMOVAL OF CAUSES OF DEFENDAnt. 36-DIVERSE CITIZENSHIP-I'RAUDULENT JOINDER Since under Hurd's Rev. St. Ill. 1917, c. 114, § 103, declaring the fact the fire was set out to be prima facie evidence of negligence, the engineer in charge of the locomotive was a proper party, the joinder of the engineer and the railroad company as defendants in a suit in state court cannot be deemed fraudulent, though it prevented the company from removing the cause to the federal court on the ground of diversity of citizenship. 4. REMOVAL OF CAUSES 49(3)—SEPARABLE CONTROVERSY. Where, in an action for damages from fire set out by a locomotive, both the railroad company, which was a nonresident, and the engineer, who was a resident, were joined in an action in the Illinois state court grounded on Hurd's Rev. St. Ill. 1917, c. 114, § 103, making the fact of fire prima facie evidence of negligence, held, there was no separable controversy, authorizing removal by the company. At Law. Action by Russell F. Poorman against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and Oscar Macey, begun in state court, and removed to the federal court by the filing of a transcript therein, etc., after the state court denied the petition for removal. On motion to remand. Cause remanded. Arthur Poorman, Stewart L. Clark, and Graham & Snavely, all of Marshall, Ill., for plaintiff. P. J. Kolb, of Mt. Carmel, Ill., and Scholfield & Scholfield, of Marshall, Ill., for defendants. ENGLISH, District Judge. This is a suit brought by the plaintiff in the circuit court of Clark county, Ill., against the defendants above named. The facts, as appear from the pleas and files, are that the defendant railroad company is a corporation organized under the laws of the states of Ohio and Indiana, and engaged in operating a line of railroad through Clark county, Ill., and that the defendant Oscar Macey was and is an engineer in the employ of the defendant company, and is a resident of the state of Illinois, and that the plaintiff is also a resident of Clark county, Ill.; that some time prior to the institution of the suit at bar the plaintiff was the owner of certain buildings and elevator property situated along the railroad line of the defendant company in Clark county, Ill.; that while the defendant Oscar Macey, as engineer on one of defendant company's trains, was pulling For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes a train of cars on said railroad passing plaintiff's property, that the defendant company and its codefendant, Macey, through their carelessness and negligence in failing to install proper spark arresters and keeping them in proper condition, and otherwise carelessly and negligently so operated said engine that sparks of fire were allowed to escape from said engine, and caught and set fire to plaintiff's property, and that the same was thereby consumed and destroyed; that in due time the defendant railroad company filed its petition in said circuit court for removal of the case against it to the United States District Court for the Eastern District of Illinois, alleging diversity of citizenship between it and the plaintiff, and also alleging that a separable controversy existed between it and the plaintiff, which could be tried without the presence of its codefendant, Macey, and that said Macey was fraudulently joined with it to prevent the removal of the case into the federal court. The state court denied the petition for removal, and the defendant company then filed a transcript of the record in this court and procured a restraining order, out of the chancery side of the court, restraining the plaintiff from further prosecuting his suit in the state court until the further order of this court, and the plaintiff has filed his motion to remand, and the case is now at issue on the petition of removal and the defendants' motion to remand. [1-4] The statute of Illinois (Hurd's Rev. St. 1917, c. 114, § 103) provides, among other things, that in actions for damages on account of injury occasioned by fire communicated by any locomotive engine the fact that a fire was so communicated shall be taken as full prima facie evidence to charge with negligence those in the use and occupation of the railroad as owners, lessees, or mortgagees, and those at the time having the "care and management" of the engine. In this case there is no dispute that defendant Macey was operating the engine at the time plaintiff's property caught fire, as complained of, and in the opinion of this court the engineer, the defendant Macey, was at the time in the "care and management of the engine," within the meaning of this statute; that is, that an engineer running an engine for his master has the care and management of that engine while he is so running and operating it, and the engineer being so in charge of the engine and having the care and management of it could have properly been included as a defendant in this suit, and as to whether or not the engineer was negligent in permitting sparks of fire to fly from his engine is a question of proof. On the question as to whether or not the defendant Macey was included as a defendant by the plaintiff with fraudulent intent, as alleged in plaintiff's petition, it is a well-settled rule of law that there can be no fraudulent joinder of defendants, where the plaintiff has a bona fide belief in the facts upon which he bases his claim for a joint recovery, where he has a reasonable ground for a bona fide belief in the facts upon which the liability of all the defendants depend, his motive in joining them cannot be questioned. It is only when he has not, in fact, a cause of action against the resident defendant, and has no reasonable ground for supposing that he has, and he joins him in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal, and in view of the statute above cited, and the facts in this case, it cannot be said, at this time, that the plaintiff has no cause of action against the defendant Macey, neither has he any reasonable ground for supposing that he has not. In this case the plaintiff, in good faith, so far as appears in the records, seeks the determination of his rights in the state court by filing a declaration in which he alleges a joint cause of action. Does this become a separable controversy, within the meaning of the acts of Congress, because the evidence may show that the plaintiff has misconceived his cause of action? This court thinks that it does not. The court deems it unnecessary to further discuss other points and authorities urged and cited, and for the reasons herein assigned the cause is remanded to the circuit court of Clark county, Ill., for trial. POORMAN et al. v. CLEVELAND, C., C. & ST. L. RY. CO. et al. 1. REMOVAL OF CAUSES 12-ORIGINAL JURISDICTION-DISTRICT. 2. REMOVAL OF CAUSES 107(3)—REMAND-PLEA IN ABATEMENT. Where the plea of plaintiffs to the jurisdiction of the federal court, to which an action begun in state court had been removed, showed that the federal court was without jurisdiction, such plea should be treated as a motion to remand, though not so styled. At Law. Action by Russell Poorman and Omer Poorman, partners doing business under the name of Poorman Bros., against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and another, begun in state court and removed to the federal court. On motion to strike the plea in abatement to the jurisdiction of the federal court. Motion denied, and cause remanded. Arthur Poorman, Stewart L. Clark, and Graham & Snavely, all of Marshall, Ill., for plaintiffs. P. J. Kolb, of Mt. Carmel, Ill., and Schofield & Schofield, of Mar shall, Ill., for defendants. ENGLISH, District Judge. This is a suit brought by the plaintiffs in the circuit court of Clark county, Ill., against the defendants above named. The facts, as appear from the pleas and files, are: That the defendant is a railroad corporation organized under the laws of the states of Ohio and Indiana, and engaged in operating a line of railroad through Clark county, Ill. The plaintiff Russell Poorman is a resident of Clark county, Ill., and Omer Poorman, the other plaintiff, is a citizen and resident of the state of Texas. That the plaintiffs owned, in partnership, certain property in Clark county, Ill., located along the right of way of the defendant, which property was destroyed. by fire, and suit was brought, as above mentioned, for the loss sus For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes tained by the plaintiffs occasioned by the fire, and in this suit the railroad company, together with Oscar Macey, one of its engineers, were made defendants, alleging, among other things, that the fire was occasioned through the carelessness, negligence, etc., of the defendants. The defendant company filed its petition in the circuit court of Clark county, Ill., praying for a removal of the cause from said circuit court to this court, on the ground of diversity of citizenship existing between it and the plaintiffs, alleging, in said petition, that the plaintiffs are, and were at the commencement of the suit, citizens of the state of Illinois, and that the petitioning defendant is a citizen of the states of its incorporation. It is also alleged, in said petition for removal, that a separable controversy existing between it and the plaintiffs could be determined without the presence of its codefendant, Macey, and that Macey had been fraudulently joined with the railroad company for the purpose of preventing the removal of the cause into the federal court. The state court denied the petition for removal, whereupon the defendant railroad company filed a transcript of the record of this court and secured from this court a restraining order against the plaintiffs from further prosecuting their suit in the state court until the further order of this court; and thereafter the plaintiffs filed their verified plea in abatement to the jurisdiction of this court, in which they denied that the plaintiff Omer Poorman is, or was, a resident of the state of Illinois, but that he, the said Omer Poorman, was at the time of the commencement of this suit, and still is, a resident and citizen of the state of Texas, residing within the Southern judicial district of said state, and to this plea of the plaintiffs to the jurisdiction of this court the defendant railroad company has filed its motion to strike said plea in abatement from the files, and on this motion to strike this court is now called upon to pass judgment. [1] On the defendants' motion to strike the plea in abatement from the files, this court has but one question to consider, namely: Could the plaintiffs, as copartners, have brought this suit originally in this court? In this case one of the plaintiffs is a citizen of Clark county, Ill., where the suit was brought, and the defendant is a citizen of the states of its incorporation, Ohio and Indiana; but one of the plaintiffs is a citizen of the state of Texas, and the suit, so far as he is concerned, was not brought in the state of which he is a citizen, as the statute requires. Neither as plaintiff, nor as defendant, is he a citizen of the district where the suit was brought. The argument in support of the motion to strike is to the effect that it is sufficient if the suit is brought in a state where one of the defendants, or one of the plaintiffs, is a citizen. This would be true, if there were but one plaintiff or one defendant. But the statute makes no provisions, or terms, for the case of two defendants, or two plaintiffs, who are citizens of different states. In the case at bar, there being two plaintiffs, citizens of different states, there does not seem to be, in the language of the statute, any provision that both plaintiffs may unite in one suit, in federal court, in a state of which either of them is a citizen. It therefore follows, in the opinion of this court, that the plaintiffs, as copartners, could not have brought their suit originally against the defendants in this court, and that this court, for that reason, is without jurisdiction to try the cause. The motion to strike the plea in abatement from the files is overruled, and the plea in abatement sustained. [2] While the defendants' plea is styled "Plea to the Jurisdiction of the Court," it may be treated as a motion to remand, since, should this court have assumed jurisdiction of this case without knowledge of the facts, as above stated, and should it appear, upon the trial of the case in this court, that one of the plaintiffs was a resident in this jurisdiction, and that the other plaintiff was a resident of the state of Texas, it would then be the duty of this court to terminate the trial and remand the case to the state court. For the reasons assigned, this cause is remanded to the circuit court of Clark county, Ill. MEMORANDUM DECISIONS ALASKA ANTHRACITE R. CO. v. MATARELLI. (Circuit Court of Appeals, Ninth Circuit. February 28, 1919.) No. 3266. In Error to the District Court of the United States for the Third Division of the Territory of Alaska. Lyons & Ritchie, of Valdez, Alaska, and R. M. Jones, of Seattle, Wash., for plaintiff in error. Donohoe & Dimond, of Valdez, Alaska, and R. F. Lewis, of San Francisco, Cal., for defendant in error. PER CURIAM. Upon motion of counsel for the plaintiff in error, writ of error ordered dismissed. COMMERCIAL CREDIT CO. v. MCGILL. (Circuit Court of Appeals. Fourth Circuit. November 29, 1918.) No. 1632. Appeal from the District Court of the United States for the District of Maryland, at Baltimore, in bankruptcy. For opinion below, see 243 Fed. 637. Sylvan H. Lauchheimer, of Baltimore, Md., and Leo Oppenheimer, of New York City, for appellant. Robert P. Levis, of New York City, for appellee. PER CURIAM. Cause dismissed under rule 20 (233 Fed. xiii, 146 C. C. A. xiii), in accordance with agreement of counsel. In re DUNCAN. (Circuit Court of Appeals, Fourth Circuit. October 9, 1918.) No. 1677. Original application for leave to file petition for writ of mandamus, directed to Hon. Alston G. Dayton, United States District Judge for the Northern District of West Virginia, and brief in support of same, presented before Judges Knapp, Woods, and McDowell, and submitted. See, also, 249 Fed. 155, 161 C. C. A. 207. Cloyd H. Duncan, of Fairmont, W. Va., in pro. per. PER CURIAM. Application denied. In re DUNCAN. (Circuit Court of Appeals, Fourth Circuit. February 13, 1919.) No. 1699. Application for leave to file a petition for a writ of mandamus directed to Hon. Alston G. Dayton, United States District Judge for the Northern District of West Virginia. See, also, 249 Fed. 155, 161 C. C. A. 207. Cloyd H. Duncan, of Fairmont, W. Va., in pro. per. PER CURIAM. Cause submitted before Judges Pritchard, Knapp, and Woods. Mandamus denied. |