Welch v. Cincinnati, N. O. & T. P. Ry. Co.

• Citation: 177 F. 760
• Court: U.S. District Court — Eastern District of Tennessee
• Decision Date: 03 December 1908
• Parties: WELCH v. CINCINNATI, N.O. & T.P. RY. CO. et al.

177 F. 760

WELCH v. CINCINNATI, N.O. & T.P. RY. CO. et al.

United States Circuit Court, E.D. Tennessee, Northern Division.

December 3, 1908

SANFORD District Judge.

I am of the opinion that the plaintiff's motion to remand this case to the state court should be granted.

1. There is no ground of removal on the ground of a separable controversy as to the defendant railway company. As the declaration had not been filed at the time the case was removed by the defendant railway company-- the petition for removal having been filed before the declaration was due under the state practice-- the cause of action is to be taken, so far as the question of a separable controversy is concerned, as that which is set forth under oath in the plaintiff's plea to the petition for removal, by analogy to the well-settled rule by which, when the case is removed after the declaration is filed, the cause of action is for such purpose taken to be that stated in the declaration. This will work no injustice to the defendant, since presumptively if the case is remanded to the state court, the plaintiff will state in his declaration the same cause of action as that set forth in his plea; and, if a different cause of action should be stated in the declaration, disclosing a separable controversy on its face, the defendant railway company would then be entitled to renew its application for removal on such ground. It appears from the cause of action thus stated that the plaintiff is seeking to enforce a joint liability against the defendant railway company and the conductor and engineer of one of its freight trains on account of the death of plaintiff's intestate, resulting from a collision between a camp car occupied by a bridge crew of which the plaintiff's intestate was a member and a portion of a freight train, which collision is alleged to have been caused by the negligence of the said conductor and engineer and other servants of the defendant railway company engaged in switching said camp car. I am of the opinion that for the purposes of this motion the cause of action thus stated is to be held joint, and not severable, even though it appears from the facts alleged that the defendant railway company can only be held liable by reason of the negligence of the conductor and engineer upon the principle of respondeat superior, and although there is no allegation of any concurrent act of negligence on the part of the defendant railway company.

It is true that in the earlier cases in this circuit and elsewhere it was held that in an action in a state court seeking to hold a master jointly liable with his servant for the negligence of the servant causing an injury, where it did not appear either that the master was present in person directing the servant, or that the work in which the servant was engaged was of a character that made the result complained of possible and probable, the liability of the master and servant was not joint, and that in such case there was a misjoinder of defendants, and the master, if a citizen of another state, might remove the suit to the federal court in spite of the joinder of the servant as a local defendant. Warax v. Cincinnati Ry. Co (C.C.) 72 F. 637, 641; Hukill v. Railway Co. (C.C.) 72 F. 745; Landers v. Felton (C.C.) 73 F. 311.

However, the precise question involved in the present case was decided adversely to the right of removal in the recent case of Alabama Ry. Co. v. Thompson, 200 U.S. 206, 212, 220, 26 Sup.Ct. 161, 162, 166, 50 L.Ed. 441. There an action of tort brought in a state court in Tennessee against an Alabama railway corporation and the conductor and engineer of one of its trains having been removed by the railway company to the federal court on the ground of a separable controversy, and the Circuit Court of Appeals for this circuit, entertaining great doubt upon the question, having certified the questions arising on this point to the Supreme Court for its decision, it was explicitly held in an elaborate opinion, in which the Warax and other cases are reviewed, first, that a railroad corporation may 'be jointly sued with two of its servants, one the conductor and the other the engineer of one of its trains, when it is sought to make the corporation liable only by reason of the negligent acts of said conductor and engineer in the operation of its train under their management and control, and solely upon the ground of the responsibility of a principal for the acts of his servant, although not personally present or directing and not charged with any concurrent act of negligence;' and, second, 'that for the purpose of determining the right of removal the cause of action must be deemed to be joint,' and such suit is not removable by the railway corporation upon the ground of a separable controversy. The court said:

'Does this become a separable controversy within the meaning of the act of Congress because the plaintiff has misconceived his cause of action and had no right to prosecute the defendants jointly? We think in the light of the adjudication above cited from this court it does not. Upon the face of the complaint, the only pleading filed in the case, the action is joint. It may be that the state court will hold it not to be so. It may be, which we are not called upon to decide now, that this court would so determine if the matter shall be presented in a case of which it has jurisdiction. But this does not change the character of the action which the plaintiff has seen fit to bring, nor change an alleged joint cause of action into a separable controversy for the purpose of removal. The case cannot be removed unless it is one which presents a separable controversy wholly between citizens of different states. In determining this question the law looks to the case made in the pleadings, and determines whether the state court shall be required to surrender its jurisdiction to the federal court. * * * Congress has not said, whatever it might do, that controversies between citizens of different states shall be removable wherein it is sought, contrary to the law as administered in the federal courts, to hold the citizen of another state to joint liability in tort with a citizen of the state where the action is brought. The fact that the state court may take a different view from the courts of the United States of the common law as to the character of such actions, and the right to prosecute them in form joint as well as several, affords no ground of removal.'

In view of this decision, it is clear that for the purpose of determining the right of removal in the present case the cause of action set forth in the plea must be held to be joint, and that the case is not removable to this court on the ground of a separable controversy.

It is urged, however, in behalf of the railway company, that since this decision in the Thompson Case the Supreme Court of Tennessee in the case of Railroad v. Vincent, 116 Tenn. 317, 95 S.W. 179, has decided by implication that in suits of this character, where the liability of the master is rested solely upon the doctrine of respondeat superior, the cause of action is not joint, but several.

I think it true that, if the Supreme Court of Tennessee should at any time decide that a cause of action of this character is not joint, but...