Fogarty v. Southern Pac. Co.

• Citation: 123 F. 973
• Court: U.S. District Court — Southern District of California
• Decision Date: 06 July 1903
• Parties: FOGARTY v. SOUTHERN PAC. CO. et al.

123 F. 973

FOGARTY v. SOUTHERN PAC. CO. et al.

United States Circuit Court, S.D. California.

July 6, 1903

Sullivan & Sullivan, for plaintiff.

W. H Spencer, P. F. Dunne, C. E. Nougues, and Flint & Barker, for defendants.

ROSS Circuit Judge.

This is an action for damages brought in the superior court of San Luis Obispo county, Cal., against the Southern Pacific Company, a corporation of the state of Kentucky, and Frank Nelson and William S. Waters. On the petition of the defendant corporation the action was transferred to this court, where a motion is made on behalf of the plaintiff for its remand to the state court. The petition for the removal was based upon the ground that the case involves a separable controversy as between the plaintiff and the defendant corporation, and also that the individual defendants were made such solely for the purpose of depriving the defendant company of its alleged right to a trial in the federal court. In Powers v. Chesapeake & Ohio Railway Company, 169 U.S. 92, 18 Sup.Ct. 264, 42 L.Ed. 673, the Supreme Court declared it to be 'well settled that an action of tort which might have been brought against many persons, or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said, 'a defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings''-- citing Pirie v Tvedt, 115 U.S. 41, 43, 5 Sup.Ct. 1034, 1161, 29 L.Ed 331; Sloane v. Anderson, 117 U.S. 275, 6 Sup.Ct 730, 29 L.Ed. 899; Little v. Giles, 118 U.S. 596, 600, 601, 7 Sup.Ct. 32, 30 L.Ed. 269; Louisville & Nashville Railroad v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed. 473; Torrence v. Shedd, 144 U.S. 527, 530, 12 Sup.Ct. 726, 36 L.Ed. 528; Connell v. Smiley, 156 U.S. 335, 340, 15 Sup.Ct. 353, 39 L.Ed. 443. Whether or not the action presents a separable controversy as between the plaintiff and the defendant corporation is therefore to be determined from the averments of the complaint, and in no respect depends upon those of the petition for removal.

The argument of counsel for the defendant corporation, in opposition to the motion to remand, is based upon the premise that at the time of the accident in question the relation between the plaintiff and the defendant company was that of master and servant, and the relation between the plaintiff and the codefendants of the company was that of fellow servants. Turning to the complaint, it is seen that while it is true that the relation therein shown to have existed between the plaintiff and the defendant corporation was that of master and servant there is no averment to the effect that the individual defendants were employees of the defendant company at the time of the infliction of the injuries complained of, nor, indeed, showing what, if any, relation existed between them other than that of joint wrongdoers. The complaint, after alleging the corporate existence of the defendant company, alleges that at the time in question it was, and theretofore had been, carrying on, in the county of San Luis Obispo, and elsewhere in the state of California the business of a common carrier of freight and passengers, and then maintained, and ever since has maintained, for that purpose, in that...