Charles Evans Hughes

“ Where, in the absence of clear proof of bad faith in the joinder, concurrent acts of negligence on the part of the defendants sued as joint tort-feasors are sufficiently alleged, a separable controversy is not presented and the fact that the defendants might have been sued separately affords no ground for removal. This rule is applied where a nonresident employer and its resident employee, whose negligence caused the injury, are sued jointly. ”

“ As in determining whether there was such a separable controversy with respect to the Pullman Company its porter could not be ignored, the Company was bound to show that he was a non-resident in order to justify removal.
At the time of the petition for removal the Pullman porter had not yet been served with process. Where there is a non-separable controversy with respect to several non-resident defendants, one of them may remove the cause, although the other defendants have not been served with process and have not appeared. ”

“ First. The original complaint filed in the State court indicated plaintiff's intention to rest its case against the Southern Pacific Company upon the Federal Employers' Liability Act, under which suits brought in State courts are not removable to Federal courts. [2] The pleadings did not disclose that the suit was based on the Federal Act as clearly as good pleading requires, and the complaint was doubtless subject to special demurrer because of its generality. But the mere fact that a complaint based on the Federal Act is demurrable does not make it subject to removal. ”

“ On the other hand there is no diversity of citizenship, and the controversy being a nonseparable one, the non-resident defendant should not be permitted to seize an opportunity to remove the cause before service upon the resident co-defendant is effected. It is always open to the non-resident defendant to show that the resident defendant has not been joined in good faith and for that reason should not be considered in determining the right to remove. ”

“ The principle has been well stated by the Circuit Court of Appeals of the Second Circuit:
'Appellees contend that removal is prevented only where a master and servant are charged with concurrent negligence. The rule is settled otherwise. In Alabama Great So. Ry. Co. v. Thompson, supra, and Cincinnati, N.O. & Texas Pac. Ry. v. Bohon, supra, the master was alleged to be liable on the doctrine of respondeat superior. It is immaterial that the liability of the master and that of the servant proceed on different grounds ”

“ United States F. & G. Co., 5 Cir., 76 F.2d 470, 471.↑ See note 4, supra.↑ Other cases in the Eighth Circuit throw some degree of doubt on the Stewart and Des Moines Elevator & Grain Co. Cases, supra, and indicate a disposition to determine whether liability of a defendant under allegations of a complaint is joint or severable by reference to State law. See, Harrelson v. Missouri Pac. Transportation, Co., 8 Cir., 87 F.2d 176, 178; Huffman v. Baldwin, 8 Cir., 82 F.2d 5, 8; Watson v. Chevrolet Motor Co. of St. Louis, 8 Cir., 68 F.2d 686, 688, 689. After the decision of this Court in Erie R. Co. ”

“ H. J. Heinz Co., C.C., 188 F. 937; Hunt v. Pearce, D.C., 271 F. 498; Id., 8 Cir., 284 F. 321, 323, 324; Community Building Co. v. Maryland Casualty Co., 9 Cir., 8 F.2d 678; Trower v. Stonebraker-Zea Co., D.C., 17 F.Supp. ”