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STONE v. FOSTER

June 25, 1958

LORRAINE STONE, PLAINTIFF,
v.
HOWARD MYRON FOSTER AND WILLIAM E. BENNING, JR., DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, District Judge.

The plaintiff has moved to remand this case to the Circuit Court of Washington County, Arkansas.

On October 30, 1957, plaintiff filed her complaint against the defendants seeking to recover damages for personal injuries alleged to have been suffered by her in a collision between the automobile in which she was riding and one being driven by the defendant, Howard Myron Foster, a citizen and resident of the State of Oklahoma, and one being driven by the defendant, William E. Benning, Jr., a citizen and resident of the State of Arkansas.

Specific acts of negligence are alleged against both defendants, and that the acts of negligence operating both singly and together contributed to and were a proximate cause of the injuries suffered and the damages sustained by plaintiff. The plaintiff prays for judgment against both defendants and each of them, together with all costs.

On April 22, 1958, plaintiff filed an amendment to her complaint, in which she alleged that subsequent to the date of the injuries she had married Darryl Herbert, and she asked that the case proceed in her married name, Lorraine Stone Herbert.

In due time the defendant, Howard Myron Foster, filed his answer in which he denied "each and every material allegation contained in the complaint." Following the filing of the original answer, the said defendant filed an amended answer, in which he alleged that at the time of the collision of the automobiles he was in the exercise of ordinary and reasonable care, and was confronted with a sudden emergency preceding the collision; that after discovering said emergency he exercised reasonable and ordinary care to avoid and prevent the collision; that the collision occurred "as a result of an unavoidable casualty"; and that the collision "was caused and occurred on account of the sole negligence of Charles Abbott, driver of the automobile in which plaintiff was riding."

The record does not contain the answer of the defendant, William E. Benning, Jr.

The defendant, Howard Myron Foster, on May 29, 1958, filed in this Court his petition for removal, in which he alleged that the case was regularly called for a jury trial on May 12, 1958, in the Circuit Court of Washington County; that the plaintiff and both defendants announced ready for trial; a jury was empaneled and the cause proceeded to trial and was finally submitted to the jury as to both defendants on May 13, 1958; that after due deliberation the jury announced that it was unable to reach a verdict, whereupon a mistrial was declared by the trial judge and the jury dismissed.

Said defendant further alleged that the plaintiff, Lorraine Stone Herbert, is a citizen and resident of the State of Arkansas, and that because the defendant, William E. Benning, Jr., was fraudulently joined as a party defendant in the action commenced in the Circuit Court of Washington County, State of Arkansas, and that this became known to petitioner (Howard Myron Foster) only after this cause was fully tried, argued by counsel, and submitted to the jury, this cause became removable because of the manifestation of the fraud at that time for the first time, and since the matter in controversy exceeds the amount of $3,000, exclusive of interest and costs, and involves an action between citizens of different States, it is a controversy over which the District Courts of the United States have original jurisdiction.

In numbered paragraph III of the petition for removal, it is alleged:

    "Your petitioner would show the Court through a complete
  record of all of the proceedings of the trial upon the issues
  in the Circuit Court of Washington County that at no time did
  the plaintiff attempt to prove any of the allegations of
  negligence alleged by the plaintiff against the defendant
  William E. Benning, Jr., and that at no time did the
  plaintiff attempt in any wise to involve the defendant
  William E. Benning, Jr., as a responsible party for any of
  the injuries alleged by the plaintiff; that there was a
  complete absence by the plaintiff of any demonstration of an
  intent to procure a verdict against the defendant William E.
  Benning, Jr., at the hands of the jury, and that the record
  shows that there was no intent on the part of the plaintiff
  to involve the defendant William E. Benning, Jr., as a
  responsible party to whom the plaintiff could look for
  damages."

In numbered paragraph V, it is alleged:

    "That there was a complete absence of any proof on the part
  of either the plaintiff or your petitioner with respect to
  any responsibility of the defendant William E. Benning, Jr.,
  for the accident and any injuries sustained by the plaintiff
  resulting therefrom; that though no evidence of any character
  was offered by any of the parties to this trial showing any
  responsibility on the part of the defendant William E.
  Benning, Jr., because, as a matter of fact, no such proof did
  or does now exist, the attorney for the defendant William E.
  Benning, Jr., made no motions during the course of the trial
  for dismissal of said cause against the defendant William E.
  Benning, Jr.; and that during the argument to the jury at the
  conclusion of the evidence in this cause presented by said
  attorney for the plaintiff, no mention or reference was made
  by said attorney to any responsibility on the part of the
  defendant William E. Benning, Jr., and no argument was made
  which would in any wise involve William E. Benning, Jr., as a
  responsible party in the accident; and that the argument
  presented by the attorney for the defendant William E.
  Benning, Jr., was directed, apart from his assertions as to
  the responsibility of your petitioner for said accident,
  toward emphasizing and aggrandizing the injuries sustained by
  the plaintiff to the end of requesting that a substantial
  judgment be returned in this case for the plaintiff against
  your petitioner."

The petitioner, in numbered paragraph VI of the petition, alleged that the defendant, William E. Benning, Jr., was fraudulently joined for the sole purpose of preventing the removal of this case to the Federal Court.


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