ARGUED AND DETERMINED
UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.
CARR v. KANSAS CITY et al. (Circuit Court, W. D. Missouri, W. D. May 16, 1898.)
REMOVAL OF CAusES-JOINT CAUSE OF ACTION-RIGHT OF NONRESIDENT FENDANT.
Kansas City, Mo., Charter, art. 17, § 11, provides that whenever the city shall be sued for llability growing out of the wrongful act, negligence, etc.,. of any person or corporation, and such person or corporation is also liable to the same action, the plaintiff may, on motion, be compelled to make such person or corporation a joint defendant. .Held that, where the city and a corporation are jointly sued for personal injuries resulting to plaintiff by reason of the wrongful failure of both the city and such corporation to do an act incumbent on each of them, such corporation is not entitled, by reason of Its nonresidence, to a removal of the cause on the ground of a separable controversy.
This action was brougbt by Anna E. Carr against Kansas City, Mo., the Barber Asphalt Paving Company, and others, to recover for personal injuries resulting from a fall on a sidewalk. The Barber Asphalt Baving Company removed the cause into the federal court, and it is now heard on motion to remand. L. A. Laughlin, for plaintiff. Lathrop, Morrow, Fox & Moore, for defendant Barber Asphalt Paving Co. PHILIPS, District Judge. The question in this case is whether or not the action against the Barber Asphalt Paving Company presents a controversy between it and the plaintiff wholly separable from that of the other defendants. The plaintiff's cause of action is based upon the negligent condition in which the step in question was left, so elevated above the ground, in an insecure position, that, when the plaintiff stepped upon it, it gave way, whereby she was precipitated to the ground, and injured. The cause of action against the city springs from its duty to the public to keep its sidewalks in a reasonably safe condition. Its liability in this case is alleged to have been its failure to repair this imperfect sidewalk after it had
81 FEDERAL REPORTER.
of the defect, or after it could have discovered its condition by the exercise of due care. This of duty on the part of the city may be called "nonfeasance'h' to do that which it should have done. The liability of the Barber Asphalt Company arises, if at all, from its failure, after completing the work of paving;'to shore up or properly repair the step of the sidewalk, which is alleged to have been left in such an insecure condition tllat, when stepped upon, the end tipped over, whereby the plaintiff was thrown down. No fault is cqWpany as tothe cOll$tructing the Presumably, the grade of the street had been established by the theipa:v,ement was putup'PJ.l the grade as· thus established. Therefore if oecomes apparent that the liability of the paving company arises, if at all, just as against the city, from an act of nonfeasance; that is,.in not· repairing the sidewalk and restoring the status that existed at the time it began the work of paving. Thus, it also appears ,that the liability of the city and the paving company'sprfngsfrom' a like wr'dngful act in neglecting to repa;i:l':tbesidewalk after the improvement was made. The in is one. pf js, perform a duty, or a neglect of duty, as contradlstIngmshed from an act of misfeasance, which isr.notdoing. a lawful ,act ina proper manner, or omitting'todo it 8.!Ht'should be done, or from an act of malfeasance, :which is the doing ofa-nllet wholly w,rongf1ilin itself. ' , It is a:ome:what difficult :w4I'1JJ$,thft predicate of the cause of ,action against :J."Lindley Ooates, Arthur RCoates, and Laura C.Reed. As to them; the petition charges that the steps in, jqllestion eithlkby the:¢ or their' an· cestor; and, if constructed by the ancestor, exactly how a li::l.bility is claimed to devolve upon the defendants is not apparent, unless it can beassuinedbythecourt thaf tile steps werffin the nature of sour grapes, ahd the ,childrens' teeth were seton edge by reason of the an· cestor's baving eaten the grapes: ',The petition further alleges that the sidewalk was: placed in aif elevated position above the street by said defendants or their ancester, for the purpose of making their property more attractive and valuable, and it was not necessitated by,Ahetopogl"aphy()f the ,street. Whether thi!!!.was done with, or without the knowledge or consent of the city is not averred;' and,Jf any liability was thereby incurred by the last-named defendants, it would be because theijnjnry totbe: plaintiff resulted from the original conSltructionof this' sidewalkpyr', the ··last-named defendants, .and t.\lerefore there would be entirely wantiuganyco-operation in the wrongful act by the defendanttheBarber' Asphalt PavingCompanYi anq, as between lfUid defendants, there would be a separable cause of actiOn. It if! trpe that in another part of the peHtion it is alleged that the Barber Asphalt Company the street under contract the defe.ndantsJ. L. Coates, A.C. Coates, and Homer Reed, and tbat in (joing the work said Barber Asphalt Company loosened' and UlJade the bottom step leading fro:w tbe sidewalk in question insecure; Wbetheror not the Barber Asphalt Company, as to the Coatesesand Reed, sustained the relation of an independent contractor, or whether
CENTRAL TRUST CO.V. HUBINGER.
it is intended to hold the Coateses and Reed liable as masters, is not clear. But, for the purpose of this motion, the liability of the defendants the Coateses and Reed may be entirely eliminated from consideration. To entitle the defendant the Barber Company to a removal of the case from the state court into the federal court, the cause of action as to it must be wholly separable from that of all the resident defendants. By section 11 of article 17 of the charter of defendant Kansas City, whenever the city shall be sued for liability growing out of the unauthorized or wrongful act, or growing out of the negligence, carelessness, or unskillfulness, of any pers,on or corporation, and such person or corporation shall also be liable to an action on the same account by the party injured, it (the city), on motion, may compel plaintiff to bring in such other party or corporation as a joint defendant. Under the averments of this petition, the plaintiff has a cause of action against the Barber Asphalt Company, the same as against the ,defendant city, for the negligent condition in. which the sidewalk in question was left, arising from failure of each of said defendants to repair the sidewalk after the work of paving was done. ,In this respect the case at bar is differentiated from the cases cited by defendants. It results that the motion to remand must be sustained, and it is so ordered.
CENTRAL TRUST CO. OF NEW YORK v. HUBINGER. (Circuit Court, S. D. Iowa, E. D. April
Eg. No. 302.
JUDICIAL SALE OF PROPERTY AND FRANCHISE-SALE AS EN'fIRETY-DESTRUoTION .OF ENTIRETY PENDING ApPEAL-HEMEDY ON REVEHSAL.
In foreclosure proceedings In a state court, plaintiff procured a decree to be a first lien on In Its favor as trustee for $85,000, which property therein described, which included all the rights, privileges, franchises, and property of a street-railway company, which was ordered to. be sold as an entirety. At the commissioner'a sale, defendant ooughf the property as an entirety, for $10,000; and, over the objectiona of plaintitfand othera, the sale was confirmed, and the $10,000 paid Into court, and applied on fixed costs and claims found to be liens thereon superior to plaintiff's. Defendant conveyed the property to a corporation of which he was the active and absolute manager. He procured the repeal of the exclusive franchise granted to said street-railway company, and the grant of II. like one to said corporation. Defendant and said corporation took up portiona of the track, changed the lines, laid new tracks on other streets, removed engines, dynamos, and machinery from the power house, removed motors, changed the application of the motive power, etc., so' as practically to destroy the identity of the property as an entirety as It was delivered to defendant at the time of the sale. Upon appeal from the order confirming the sale, which was without supersedeas, the order and sale were set aside. Held, In an action in personam against defendant for destroying said property as an entirety, plaintiff is entitled to recover the value thereof at the time It was turned over to defendant, less the amount of the elaiIIis"whlch were superior liens to that of plaintiff. A purchaser at judicial sale of all th property, rights, and franchise of a street-railway company, l,IS an entirety, who, pen,ding appeal from the order confirming the sale; surl'endera the exclusive 'franch!s(' granted to
SAME-DESTRUCTION OF 1DENTITY-OFFER TO RETURN.