Thomas v. Great Northern Ry. Co.
Decision Date | 20 June 1906 |
Docket Number | 1,293. |
Parties | THOMAS v. GREAT NORTHERN RY. CO. et al. |
Court | U.S. Court of Appeals — Ninth Circuit |
F. W Dewart, for plaintiff in error.
M. J Gordon, Charles A. Murray, and W. W. Hindman, for defendants in error.
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
GILBERT Circuit Judge, after stating the case as above, .
It is assigned as error, among other assignments, that the Circuit Court overruled the motion of the plaintiff in error to remand the cause to the state court. In Alabama Great Southern Railway Co. v. Thompson, Admr. (Jan. 2, 1906) 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed., 441, the Supreme Court reviewed its former decisions, expressed the purport of their meaning, and finally determined the doctrine that the case made in the complaint against defendants sued jointly is, in the absence of a showing of fraudulent misjoinder determinative of the right of removal. The court first reviewed Chesapeake & Ohio R.R. Co. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121; and, after quoting therefrom, said:
'It is patent from the language just quoted from the opinion that, conceding the misjoinder of causes of action appeared on the face of the petition, the fact was not decisive of the right of the nonresident defendant to remove the action to the federal court.'
From that decision the court quoted with approval the following:
'It has often been decided that an action brought in a state court against two jointly for a tort cannot be removed by either of them into the Circuit Court of the United States, under Act March 3, 1875, c. 137, Secs. 2, 18 Stat. 470 (U.S. Comp. St. 1901, p. 509), upon the ground of a separable controversy between the plaintiff and himself, although the defendants have pleaded severally and the plaintiff might have brought an action against either alone.'
And quoting the language in the opinion of the court in Louisville & Nashville Railroad Company v. Ide, 114 U.S. 52, 5 Sup.Ct. 735, 29 L.Ed. 63, in which the Chief Justice had said, 'A defendant has no right to say that an action shall be several which a plaintiff elects to make joint,' the court proceeded to remark:
Under the decisions of the Supreme Court of the state of Washington, a servant may be joined with the master in an action to recover damages for personal injuries alleged to have resulted from their negligence, whether the negligence of the servant consists in nonfeasance or misfeasance. Lough v. John Davis Co., 30 Wash. 204, 70 P. 491, 59 L.R.A. 802, 94 Am.St.Rep. 848; Howe v. Northern Pacific Ry., 30 Wash. 569, 70 P. 1100, 60 L.R.A. 949. The action in the present case, therefore, was one which could be brought and enforced in the courts of that state. That a federal court in the same jurisdiction might rule differently as to the liability of the servant, where his negligence consisted in nonfeasance, is no ground for removal. In the Alabama Great Southern Railway Company Case the court said:
It remains to be considered whether the cause was removable upon the allegations of the petition of the railway company in which it was alleged that McDonald, its codefendant, was not a proper party defe...
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