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
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.
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
"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
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
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.