Dowell v. Chicago, Rock Island & Pacific Railway Co.

Citations

• 83 Kan. 562
• 112 P. 136
• 1910 Kan. LEXIS 583

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Actions and Remedies — Joint Wrongdoers — Employee’s Lia~ bility to a Third Party for a Misfeasance. An averment that an engineer of a railway company negligently and recklessly ran the engine of which he was in charge against an employee at work upon the track, without signal or warning of any kind, and thus seriously injured him, alleges a misfeasance — a violation of the duty of the engineer to the track worker, and for the wrongful act he and the railway company may be sued jointly by the injured employee.</p> <p>2. Removal of Causes — Joinder of Resident and Nonresident Defendants — Separable Controversy. Where the injured employee may proceed jointly or severally against the nonresident railway company and the resident engineer liable for the injury, and where he elects in good faith to proceed against them jointly, the action does not become a separable controversy for the purpose of removal because the liability of one of the defendants arises under the statute and the other under the common law, nor because different lines of proof may be necessary to establish the negligence of each, nor yet because the plaintiff may have misconceived his right of action or may be unable ultimately to sustain it.</p> <p>3. -Joinder to Defeat Removal — Fraudulent Joinder. ■ Since the plaintiff had the legal right to sue the tort-feasors jointly for the wrong done, the allegation that the resident and nonresident tort-feasors were sued together for the purpose of preventing a removal of the case to the federal court does not. of itself state a fraudulent joinder.</p> <p>4. Fraud — Pleading. A general averment of fraud, without, stating the facts upon which the charge is based, is insufficient, to raise an issue for the determination of the court.</p> <p>5. Removal of Causes — Fraudulent Joinder — Nominal Party. A showing that the resident defendant is a man of little means and has no property that could be seized to satisfy a judgment rend