Where the right of removal depends upon the existence of a
separable controversy, the question is to be determined by the
condition of the record in the state court at the time of the
filing of the petition to remove.
In an action of tort, the cause of action is whatever the
plaintiff declares it to be in his pleading, and matters of defense
cannot be availed of as ground of removal.
When concurrent negligence is charged, the controversy is not
separable, and as the complaint in this case, reasonably construed,
charged concurrent negligence, the court declines to hold that the
state courts erred in retaining jurisdiction.
October 19, 1894, Lucy Dixon, as administratrix of Alexander
Dixon, brought her action against the Chesapeake & Ohio Railway
Company, R. H. Chalkey, and William Sidles in the Circuit Court of
Boyd County, Kentucky, by petition, which alleged:
"That Alexander Dixon departed this life intestate on 22d day of
September, 1894, while a resident of and domiciled in Boyd County,
Kentucky; that, by an order of the Boyd County Court made and
entered on the ___ day of September, 1894, plaintiff was appointed
administratrix of his estate, and gave bond and duly qualified, and
is now acting as the administratrix of the said estate. A copy of
said order is filed herewith as part hereof, marked 'A.'"
"She says that the defendant the Chesapeake & Ohio Railway
Company is and at the time hereinafter stated was a corporation and
common carrier of freight and passengers for hire, and said
defendant, by its locomotives, cars, and other appurtenances, now
operates and at the times hereinafter stated, operated lines of
railway extending into the County of Boyd and State of Kentucky.
She says that, on the 22d day of September,
Page 179 U. S. 132
1894, while crossing the track of the defendant at the crossing
of the Ashland & Catlettsburg Turnpike road and within the
corporate limits of said town, the said intestate, Alexander Dixon,
was by the negligence of the defendant, the Chesapeake & Ohio
Railway Company, and of its agents and servants, R. H. Chalkey and
Wm. Sidles, who were in charge thereof, run over and instantly
killed by one of defendant's passenger trains while on its way from
Catlettsburg to Ashland, Boyd County, Kentucky, whereby she had
been damaged in the sum of $30,000."
"At the time and place when and where plaintiff's intestate was
injured as aforesaid, the defendants R. H, Chalkey and Wm. Sidles
were, and for a long time theretofore had been, servants of the
corporate defendants in charge and control of said train, and then
and there were, and for a long time theretofore had continuously
been, respectively, engineer and fireman of said train, and said
negligence of the corporate defendant was done by and through its
said servants and other of its servants then and there in its
employment, and said negligence was the joint negligence of all the
defendants."
On the 30th of January, 1895, the railway company filed its
petition for the removal of the cause to the Circuit Court of the
United States for the District of Kentucky, and tendered therewith
a bond as required by law.
The petition read as follows:
"Your petitioner, Chesapeake & Ohio Railway Company,
respectfully shows that it is one of the defendants in the
above-entitled suit, and that the matter and amount in dispute in
the said suit, exclusive of interest and cost, exceeds the sum or
value of $2,000."
"Your petitioner further shows that the said suit is of a civil
nature, and that there is in said suit a controversy which is
wholly between citizens of different states, and which can be fully
determined as between them, to-wit, a controversy between your said
petitioner, the Chesapeake & Ohio Railway Company, who avers
that it was at the time of the bringing of this suit and still is a
corporation created, organized, and existing under and by virtue of
the laws of the State of Virginia
Page 179 U. S. 133
and a citizen of the said State of Virginia, and the said
plaintiff, Lucy Dixon, administratrix of Alexander Dixon, who, your
petitioner avers, was then and still is a citizen of the State of
Kentucky; that the said controversy is of the following nature,
viz.:"
"Whether your petitioner is liable to the said plaintiff for
damages on account of the death of said intestate, alleged to have
been caused by the negligence of certain of its servants therein
named and made defendants thereto, and other of its servants then
and there in its employment and who are not named, it being claimed
by said plaintiff that, because thereof, your petitioner is liable
in damages to her, and that your petitioner and the said plaintiff
are both actually interested in said controversy."
"Your petitioner further states that the defendants R. H.
Chalkey and William Sidles are neither necessary nor proper parties
defendant to this cause, and that they were made parties defendant
to this cause for the sole and single purpose to prevent a removal
by petitioner of this cause to the Circuit Court of the United
States for the District of Kentucky, and thereby unlawfully to
deprive your petitioner of the right conferred upon it by the
Constitution and laws of the United States."
The Boyd Circuit Court adjudged the bond sufficient, but
overruled the petition.
Separate answers by the company and by Chalkey and Sidles were
thereupon filed, and issue joined thereon, trial was had, resulting
in a verdict and judgment in favor of plaintiff, and the judgment
was affirmed on appeal by the Court of Appeals of Kentucky. 47 S.W.
615.
In the opinion of that court it was said, among other
things:
"The main ground for reversal is the refusal of the lower court
to sustain the petition of the appellant the Chesapeake & Ohio
Railroad Company for a transfer of this case to the United States
court for the district of Kentucky."
"The ground upon which the transfer was sought, as alleged in
the petition asking it, is that the action is wholly between
citizens of different states, the Chesapeake and Ohio Railroad
Company being a corporation created under the laws of the
Page 179 U. S. 134
State of Virginia, and a citizen thereof, while appellee, Lucy
Dixon, is and was a citizen of the State of Kentucky. As appellants
Chalkey and Sidles were, when this action was commenced, citizens
of Kentucky, the Boyd Circuit Court had jurisdiction of the persons
of all the defendants, as well as of the subject of the action, if
the defendants were jointly guilty of the negligence alleged to
have been the cause of the death of Alexander Dixon, and jointly
liable therefor."
"It is alleged by appellee in her petition, and, so far from the
contrary being shown by appellant the Chesapeake & Ohio
Railroad Company, is clearly proved by the evidence in this case,
that appellants Chalkey and Sidles, as engineer and fireman of said
train, were guilty of the negligence causing said death, and that
the Chesapeake & Ohio Railroad Company, through its said
employees, was also guilty of said negligence, and therefore they
were jointly liable for the destruction of the life of said Dixon,
caused thereby."
"It is not material that, as alleged in the petition for a
transfer of this case, Chalkey and Sidles were made parties
defendant for the single purpose of preventing the removal of the
case by the Chesapeake & Ohio Railroad Company to the Circuit
Court of the United States for the District of Kentucky, or what
may have been the motive of the plaintiff for bringing a joint
action, unless they were wrongfully and illegally joined, and such
is the doctrine as settled by the Supreme Court of the United
States."
"As, therefore, the appellant Chesapeake & Ohio Railroad
Company neither sufficiently alleged not attempted to prove that
the defendants were wrongfully joined as such, the lower court
properly refused to make the transfer. "
Page 179 U. S. 135
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The question to be determined is whether the Court of Appeals of
Kentucky erred in affirming the action of the Boyd Circuit Court in
denying the application to remove. And that depends on whether a
separable controversy appeared on the face of plaintiff's petition
or declaration. If the liability of defendants, as set forth in
that pleading, was joint, and the cause of action entire, then the
controversy was not separable as matter of law, and plaintiff's
purpose in joining Chalkey and Sidles was immaterial. The petition
for removal did not charge fraud in that regard or set up any facts
and circumstances indicative thereof, and plaintiff's motive in the
performance of a lawful act was not open to inquiry.
By section 241 of the Constitution of Kentucky, it is provided
that,
"whenever the death of a person shall result from an injury
inflicted by negligence or wrongful act, then, in every such case,
damages may be recovered for such death from the corporations and
persons so causing the same."
Section 6 of the Kentucky statutes provides:
"Whenever the death of a person shall result from an injury
inflicted by negligence or wrongful act, then, in every such case,
damages may be recovered for such death from the person or persons,
company or companies, corporation or corporations, their agents or
servants, causing the same, and when the act is willful or the
negligence is gross, punitive damages may be recovered, and the
action to recover such damages shall be prosecuted by the personal
representative of the deceased."
The cause of action thus created is independent of any right of
action the deceased may have had or would have had if he had
survived the injury, and in this case, the court of appeals held
that the company and its engineer and fireman were jointly liable
for Dixon's death, if caused by the negligence of those employees,
and that the cause of action as alleged against all the defendants
was an entire cause of action. The court also held that such cause
of action was sufficiently proven, but we are dealing with the
pleading alone.
Counsel for plaintiff in error contends, however, that
plaintiff's
Page 179 U. S. 136
complaint does not state a joint cause of action against the
corporate and individual defendants, but states a separate cause of
action against the railway company and a separate cause of action
against the other defendants.
It is conceded that, if an action be brought on a joint cause of
action, it makes no difference that separate causes of action may
have existed on which separate actions might have been brought,
and, furthermore, that it makes no difference that, in an action on
a joint cause of action, a separate recovery may be had against
either of the defendants, while it is insisted that if two or more
separable controversies appear from the averments, it is not
material whether they have been properly or improperly joined.
If the liability was not joint, then separable controversies
existed, and the argument is that the averment that the negligence
complained of "was the joint negligence of all the defendants'"
merely stated the conclusion of law that the company and its
employees were jointly liable in the action for the injury
inflicted through the negligence of the latter in the course of,
and within the scope of, their employment, and this conclusion is
denied on the ground that the liability of the company, as alleged,
rested on a wholly different basis from that of the liability of
its servants.
In
Warax v. Cincinnati, N. O. & T. P. Railway
Company, 72 F. 637, Taft, J., held that there were separable
controversies in such cases because the liability of the master for
the negligence of his servants in his absence, and without his
concurrence or express direction, arises solely from the policy of
the law which requires that he shall be held responsible for the
acts of those he employs, done in and about his business, while the
liability of the servant arises wholly from his personal act in
doing the wrong.
This view of the ground of the master's liability is expressed
by Mr. Pollock in his work on Torts (Am. ed. 89, 90) thus:
"I am answerable for the wrongs of my servant or agent not
because he is authorized by me or personally represents me, but
because he is about affairs, and I am bound to see that my affairs
are conducted with due regard to the safety of others. "
Page 179 U. S. 137
So it was said by Lord Brougham in
Duncan v. Findlater,
6 Clark & Fin. 894, 910:
"The reason that I am liable is this -- that, by employing him,
I set the whole thing in motion, and what he does, being done for
my benefit and under my direction, I am responsible for the
consequences of doing it."
By Lord Cranworth in
Barton's Hill Coal Co. v. Reid, 3
Macqueen 266, 283:
"He is considered as bound to guarantee third persons against
all hurt arising from the carelessness of himself or of those
acting under his orders in the course of his business."
And by Chief Justice Shaw, in
Farwell v. Boston &
Worcester Railroad Company, 4 Met. 49:
"This rule is obviously founded on the great principle of social
duty that every man in the management of his own affairs, whether
by himself or by his agents or servants, shall so conduct them as
not to injure another, and if he does not, and another thereby
sustains damage, he shall answer for it. If done by a servant in
the course of his employment and acting within the scope of his
authority, it is considered, in contemplation of law, so far the
act of the master that the latter shall be answerable
civiliter."
Whatever its sources or the principles on which it rests, the
rule itself is firmly established, and many courts have held the
identification of master and servant to be so complete that the
liability of both may be enforced in the same action, although
other courts have reached the opposite conclusion.
* As remarked by
MR. JUSTICE GRAY, then Chief Justice of Massachusetts, in
Mulchey v. Methodist Religious Society, 125 Mass. 487, the
question is "a somewhat nice one," the determination of which by
the highest court of Kentucky we are not called upon to revise, as
the disposition of this case turns on other considerations.
In respect of the removal of actions of tort on the ground of
separable controversy, certain matters must be regarded as not open
to dispute. In
Powers v. Chesapeake & Ohio Railway
Company, 169 U. S. 92, it
was said:
"It is well settled that an action of tort which might have
Page 179 U. S. 138
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."
"
Pirie v. Tvedt, 115 U. S. 41,
115 U. S.
43;
Sloane v. Anderson, 117 U. S.
275;
Little v. Giles, 118 U. S.
596,
118 U. S. 600-601;
Louisville & Nashville Railroad v. Wangelin,
132 U. S.
599;
Torrence v. Shedd, 144 U. S.
527,
144 U. S. 530;
Connell
v. Smiley, 156 U. S. 335,
156 U. S.
340."
In
Railroad Company v. Wangelin, it was said to be
equally well settled
"that, in any case, the question whether there is a separable
controversy which will warrant a removal is to be determined by the
condition of the record in the state court at the time of the
filing of the petition for removal, independently of the
allegations in that petition or in the affidavit of the petitioner,
unless the petitioner both alleges and proves that the defendants
were wrongfully made joint defendants for the purpose of preventing
a removal into the federal court."
In that case, the declaration charged two corporations with
having jointly trespassed on the plaintiff's land, and it was
insisted that one of the corporations was not in existence at the
time of the alleged trespass, but that was held to be a question on
the merits.
And in
Provident Savings Life Assurance Society v.
Ford, 114 U. S. 635, it
was held that the question of a colorable assignment was matter of
defense, and not ground for removal.
The contention of counsel is that this complaint charged neither
direct, nor concurrent, nor concerted action on the part
Page 179 U. S. 139
of all the defendants, but counted merely on the negligence of
the employees.
If the complaint should be so construed, the question would
still remain whether the cause of action was not entire as the case
stood, and the objection of the difference in the character of the
liability matter of defense, which might force an election, or
defeat the action as to one of the parties.
The cause of action manifestly comprised every fact which
plaintiff was obliged to prove in order to obtain judgment, or,
conversely, every fact which defendants would have the right to
traverse. And, on the principle of the identification of the master
with the servant, it would seem that there was no fact which the
company could traverse which its codefendants, being its employees,
could not. At all events, a judgment against all could not
afterwards be attacked for the first time on this ground.
But does the complaint bear the construction the company puts
upon it?
The pleader did not set forth -- and, according to the decision
of the court of appeals, this was not material -- the specific acts
of negligence complained of. It was stated that the
"negligence of the corporate defendant was done by and through
its said servants and other of its servants then and there in its
employment, and said negligence was the joint negligence of all the
defendants."
Assuming this averment to be inconsistent with a charge of
direct action by the company, it may nevertheless be held to amount
to a charge of concurrent action when coupled with the previous
averment that Dixon was killed, while crossing the track at a
turnpike crossing, by the negligence of the company and the other
defendants in charge of the train. The negligence may have
consisted in that the train was run at too great speed, and in that
proper signals of its approach were not given, and if the speed was
permitted by the company's rules, or not forbidden, though
dangerous, the negligence in that particular and in the omission of
signals would be concurrent. Other grounds of concurring negligence
may be imagined. And where concurrent negligence is charged, the
controversy is not separable.
Page 179 U. S. 140
In
Whitcomb v. Smithson, 175 U.
S. 635, the action was brought in the state court
against one railway company and the receivers of another to recover
for personal injuries inflicted by concurrent negligence. The cause
was removed to the circuit court and remanded because there was no
separable controversy. At the close of the evidence on the
subsequent trial, the company moved that the jury be instructed to
return a verdict in its favor, which was resisted by plaintiff, but
granted by the court, and a verdict returned accordingly. The other
defendants, the receivers, then applied for a removal, which was
denied. We held the ruling in favor of the company was a ruling on
the merits, and not a ruling on the question of jurisdiction, and
sustained the action of the state courts.
Chicago, Rock Island &c. Company v. Martin,
178 U. S. 245, is
another case in which an action for concurrent negligence was held
not to present a separable controversy.
In
Powers v. Chesapeake & Ohio Railway Company,
supra, where the company and its employees had been jointly
sued as in the case at bar, the case had been remanded on removal
for want of separable controversy. Plaintiff subsequently
discontinued the action as to all the defendants except the
company, and the company again made application to remove. This was
denied by the state court, but granted by the circuit court, and
the judgment of the latter was affirmed by this Court, the question
of separable controversy being necessarily not passed on here.
169 U. S. 169 U.S.
92.
Plymouth Gold Mining Company v. Amador & Sacramento
Canal Company, 118 U. S. 264, and
Connell v. Utica &c. Railroad Co., 13 F. 241, are more
in point on the precise question sought to be raised, and in the
latter case, Mr. Justice Blatchford expressed the opinion that it
was proper for the federal courts to follow the decisions of the
state courts that a cause of action was entire.
Our conclusion is that it cannot properly be held that it
appeared on the face of this pleading, as matter of law, that the
cause of action was not entire, or that a separable controversy was
presented.
Judgment affirmed.
MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissented.
MR. JUSTICE McKENNA, not having heard the argument, took no part
in the disposition of the case.
*
See cases collected in 15 Encyc.Pleading &
Practice 560.
