Where there is a joint cause of action against defendants
resident of plaintiff's state and a nonresident defendant, in order
to make the case removable as to the latter because of the
dismissal as to the former, the discontinuance as to the resident
defendants must have been the voluntary act of the plaintiff and
have so taken the resident defendants out of the case as to leave
the controversy one wholly between the plaintiff and the
nonresident defendant.
Under the practice in Missouri, when the court has sustained
demurrers by some of the defendants and allowed plaintiff to take
an involuntary
Page 236 U. S. 312
nonsuit as against them with leave to set it aside, the case is
not then ended as against those defendants, nor is it until after
affirmance by the appellate court or the expiration of plaintiff's
time to appeal; the controversy does not become one solely between
the plaintiff and the other defendants, and even if the latter are
nonresidents of plaintiff's state, the case is not removable as to
them.
Powers v. Chesapeake & Ohio Ry., 169 U. S.
92, distinguished.
171 Mo.App. 528 affirmed.
The facts, which involve questions regarding removal from the
state to the federal court where the cause of action has been
dismissed after trial as to all the defendants, resident of the
same state as plaintiff, are stated in the opinion.
MR. JUSTICE Day delivered the opinion of the Court.
Agnes Kettelhake was the widow of one Frank Kettelhake, who had
been in the employ of the American Car & Foundry Company
(hereinafter called the Car Company) at St. Louis, Missouri. She
brought her action to recover for the negligent killing of
Kettelhake by the movement of a certain train of cars operated by
the Car Company in the yard adjacent to its plant whilst Kettelhake
was working under an unfinished car. Her action was brought in the
Circuit Court of the City of St. Louis, and the Car Company, a New
Jersey corporation, William W. Eilers and Quincy Martin, citizens
of Missouri, as was the plaintiff, were made joint defendants. It
is conceded that the action was properly brought jointly against
the Car Company and the defendants Eilers and Martin. The
negligence charged was in substance that the defendants
Page 236 U. S. 313
omitted to instruct and require their employees to so mark cars
under and about which other employees were engaged in work that all
persons would know whether employees were working under such cars,
negligently omitted to notify Kettelhake that defendants were about
to move the car under which he was working, negligently omitted to
discover that Kettelhake was under and repairing the car, and
negligently caused the wheels and trucks of the car under which he
was working to run over him.
Answers were filed and issues joined, and the case was called
for trial in the Circuit Court of the City of St. Louis, and at the
close of the plaintiff's evidence, each of the defendants requested
the court to give in its behalf a peremptory instruction to find
for the defendant. Under the Missouri practice, such instructions
are usually referred to as demurrers to the evidence. The court
sustained the demurrer offered by the defendant Martin and that
offered by the defendant Eilers, and overruled the demurrer offered
by the defendant Car Company, to which action of the court in
sustaining the demurrers offered by Martin and Eilers plaintiff
then and there excepted, and saved her exceptions at the time.
Plaintiff asked leave to take an involuntary nonsuit as to the
defendants Eilers and Martin, with leave to move to set aside the
same, and leave to take such nonsuit was granted by the court, and
said involuntary nonsuit with leave to move to set aside the same
was taken; thereupon the defendant Car Company orally asked the
court for time to prepare and file a petition and bond for removal
from the state court to the federal court, which time the court
then and there granted. Before said petition for removal and bond
were filed, the plaintiff, by leave of court, orally moved the
court to set aside the involuntary nonsuit which plaintiff had
taken as to defendants Martin and Eilers, which motion was then and
there overruled. Thereupon the
Page 236 U. S. 314
Car Company filed its petition for removal and bond, which
petition for removal was denied, to which denial the Car Company
then and there excepted. At the same term, and within four days
after the nonsuits as to defendants Martin and Eilers were taken,
and during the same term that the verdict and judgment were
rendered, plaintiff filed separate motions praying the court to
overrule the order theretofore made overruling plaintiff's motion
to set aside said nonsuits and reinstate the cause, and praying the
court to grant plaintiff a new trial as to said defendants, which
motions were overruled. Thereafter plaintiff filed her application
and prayed an appeal as to the defendant Martin to the Supreme
Court of Missouri, which appeal, by order of the court, duly
entered of record, was allowed, and it is conceded that the matter
appealed from is now pending in the Supreme Court of Missouri, and,
so far as it appears, is undecided.
A verdict was rendered in favor of the plaintiff against the Car
Company, and afterwards the case was taken to the Supreme Court of
Missouri, which court held that it had no jurisdiction, and that
the exclusive jurisdiction was in the St. Louis Court of Appeals,
to which the cause was transferred. That court passed upon other
questions to which it is not necessary to refer, and as to the
right of removal held that the case was not a removable one. It is
to that part of the judgment that this writ of error is taken.
To sustain its contention, the plaintiff in error relies upon
the case of
Powers v. Chesapeake & Ohio Railway,
169 U. S. 92. In
that case, it appears that there were two petitions for removal in
a case in which an action was brought against a nonresident
railroad and two citizens of the same state as the plaintiff. The
case was first removed to the circuit court of the United States,
but upon motion was remanded to the state court, the United States
court holding that there was no separable
Page 236 U. S. 315
controversy between the railroad company and the plaintiff. When
the case was called for trial before a jury in the state court, the
plaintiff discontinued his action against the individual
defendants, and thereupon the railroad company filed a second
petition for removal. That application was denied by the state
court, but was granted by the circuit court of the United States,
and the question was as to the propriety of the order of removal.
It was held that, when the case was discontinued as to the
defendants who were citizens of the same state with the plaintiff,
the action became for the first time one against the railroad
company alone, and therefore properly removable at that time.
In
Kansas City &c. Ry. v. Herman, 187 U. S.
63, it was held that a case was not removable because
the court had held that, as to a resident defendant, there was not
sufficient evidence to warrant a verdict, and sustained a demurrer
to the evidence. It was held that the ruling was on the merits and
in invitum, and that there was nothing to show that the
original joinder was in bad faith.
In
Fritzlen v. Boatmen's Bank, 212 U.
S. 364, the principle of the
Powers case was
applied, and it was held that an application for removal under the
circumstances there shown was within time under the ruling in the
Powers case.
In
Lathrop, Shea & Henwood Co. v. Interior Construction
& Improvement Co., 215 U. S. 246, it
was held that, where the plaintiff insisted on the joint liability
of the nonresident and resident defendants, the dismissal of the
complaint on the merits as to the defendants who were citizens of
the same state with the plaintiff did not make the case then
removable, and did not prevent the plaintiff from taking a verdict
against the defendants who might have removed the suit had they
been sued alone, or had there originally been a separable
controversy as to them.
Taking these cases together, we think it fairly appears
Page 236 U. S. 316
from them that, where there is a joint cause of action against
defendants resident of the same state with the plaintiff and a
nonresident defendant, it must appear, to make the case a removable
one as to a nonresident defendant because of dismissal as to
resident defendants, that the discontinuance as to such defendants
was voluntary on the part of the plaintiff, and that such action
has taken the resident defendants out of the case, so as to leave a
controversy wholly between the plaintiff and the nonresident
defendant. We do not think that situation is shown by this record.
In other words, as the St. Louis Court of Appeals said, the
resident defendants had not "so completely disappeared from the
case as to leave the controversy one entirely between the plaintiff
and a nonresident corporation." The trial judge recognized this
when he overruled the motion to allow the petition for removal. In
this connection, the judge said:
"Under the evidence in this case, Martin is not liable, and in
pursuance to that ruling, you take a nonsuit with leave to move to
set the same aside; so that, in my opinion, he is still a party to
the suit. Your motion to set aside the nonsuit might hereafter be
granted, and then we would have a section of the suit in the United
States court and a section here."
This conclusion seems to be in conformity with the holdings of
the Supreme Court of Missouri as to the effect of such nonsuit. In
Chouteau v. Rowse, 90 Mo.191, the Supreme Court of
Missouri held that, when a voluntary nonsuit is taken, the
plaintiff abandons his suit and it is ended, and from the judgment
entered upon it there is no appeal; but when a plaintiff is
compelled by the adverse ruling of the court to take an involuntary
nonsuit with leave to move to set the same aside with a view not to
abandon the prosecution of the suit, but to test the correctness of
the ruling by appeal, the appeal only removes the cause from the
circuit court to the appellate
Page 236 U. S. 317
court, and when bond is given, the judgment for nonsuit is
superseded, and can only become operative and enforceable in the
event of its being affirmed by the appellate court. It is only when
so affirmed that a plaintiff, in contemplation of the statute of
Missouri (Rev.Stat. ยง 3239) can be said to suffer a nonsuit. The
same practice was recognized in
Nivert v. Railroad, 232
Mo. 626, and in
Lewis v. Mining Co., 199 Mo. 463, 468.
We have examined the cases from the Supreme Court of Missouri
relied upon by the plaintiff in error and we find nothing in them
to militate against the conclusion reached in circumstances like
those now presented. The ruling of the court sustaining the
demurrer to the evidence interposed by the resident defendants
practically determined the question of their liability, and, under
the Missouri practice as we understand it, there was a right to
take an involuntary nonsuit, with leave to move to set it aside,
and when that motion was overruled, there was a remedy by appeal to
the Supreme Court of Missouri, as was done in the present case, and
the order is not final until the appellate court passes upon
it.
We cannot agree to the contention that, upon this record, when
the court had sustained the demurrers to the evidence as to Martin
and Eilers, and plaintiff took the nonsuit, the case was so far
terminated as between the plaintiff and the resident defendants as
to leave a removable controversy wholly between the plaintiff and a
nonresident corporation.
The element upon which the decision in the
Powers case
depended -- the voluntary dismissal and consequent conclusion of
the suit in the state court as to the resident defendants -- is not
present in this case.
We think the Court of Appeals of the City of St. Louis correctly
ruled that the case is not a removable one, and its judgment is
Affirmed.