Brunski v. Ford Motor Co.

REEVES, District Judge (after stating the facts as above). 1. As a postulate to a consideration of the questions involved here, it should be stated that, where plaintiff’s petition states a joint cause of action, it is not removable, even though defendants may file separate answers and set up different defenses. A separate defense may defeat a joint recovery, but it cannot deprive the plaintiff of his right to prosecute his suit to final decision in his own way. Whiteaker v. Railroad, 252 Mo. 438, 160 S. W. 1009; Chi. Rock Island Ry. v. Whiteaker, 239 U. S. 421, 36 Sup. Ct. 152, 60 L. Ed. 360; Southern Railway Co. v. Carson, 194 U. S. 136, 24 Sup. Ct. 609, 48 L. Ed. 907; Powers v. Chesapeake & Ohio Railway Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673. Moreover, it is the rule that the identification of master and servant is so complete that the liability of both may be enforced in the same action (Southern Railway v. Carson, supra; Morin v. Rainey et al. (Mo. App.) 207 S. W. 858, loc. cit. 861; Davenport v. Southern Railway Co., 135 Fed. 960, 68 C. C. A. 444; 26 Cyc. 1543; Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703, 140 Am. St. Rep. 515. In defining the duty of a foreman, it has been held that, having charge of and controlling workmen, he is presumed to observe the presence or absence of proper safety appliances and to know the danger of working without such appliances, and it is his duty to warn those working under his direction and control of dangers which are not obvious to them, and that he is guilty of actionable negligence in failing to warn the workmen of such danger. Russell v. Champion Fibre Co., 214 Fed. 963, 131 C. C. A. 259; Railway v. Schwyhart, 227 U. S. 184, 33 Sup. Ct. 250, 57 L. Ed. 473; Clark v. Railway et al. (D. C.) 194 Fed. 505. 2. In the case at bar, plaintiff’s petition charges a joint liability and states facts which, under all the authorities, if true, would render the defendants jointly liable. [809] “A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. ® * '* A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way.” Alabama Southern Railway v. Thompson, 200 U. S. 206, loc. cit. 216 (26 Sup.. Ct. 161, 164, 50 L. Ed. 441, 4 Ann. Cas. 1147); Lanning v. Railroad, 196 Mo. 647, loc. cit. 658, 94 S. W. 491. The test of such controversy is the cause of action stated in the complaint. If it is joint in character, and no attack is made upon the good faith of the action, no separable controversy is presented, within the meaning of the act of Congress. Alabama Southern Ry. Co. v. Thompson, supra; Cincinnati, N. O. & T. P. Ry. v. Bohon, 200 U. S. 221, loc. cit. 226, 26 Sup. Ct. 166, 50 L. Ed. 448, 4 Ann. Cas. 1152. The cause of action sued for in this case is an entirety, and not separable. Stotler v. Railroad, 200 Mo. 107, loc. cit. 120, 98 S. W. 509. 3. The only other question in the case is whether the joinder of the two defendants was only a sham or a fraudulent device to prevent a removal. It is so charged in the petition to remove from the state court. The law requires that a showing must be made by the removing defendant of a state of facts rightly leading ,to that conclusion, apart from the pleader’s deductions. Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, loc. cit. 152, 34 Sup. Ct. 278, 58 L. Ed. 544; Wilson v. Republic Iron & Steel Co., 257 U. S. 92, loc. cit. 97, 42 Sup. Ct. 35, 66 L. Ed. 144; Railway v. Dowell, 229 U. S. 102, 33 Sup. Ct. 684, 57 L. Ed. 1090. In this case it was alleged in the petition for removal that the resident defendant was only a nominal party, and that no act of negligence was charged against him, so as to render him jointly liable with the nonresident defendant. As these were the only charges to support the deduction of fraud, it must be ruled adversely to the contention of the removing defendant, in view of the conclusion heretofore reached that the petition did charge a cause of action against the resident defendant. It appears, therefore, from the petition and from the evidence, that on reasonable grounds plaintiff believed in good faith that the defendants were jointly liable to him. There was not a separable controversy. Fraser v. Jennison, 106 U. S. 191, 1 Sup. Ct. 171, 27 L. Ed. 131. His joinder of defendants is not fraudulent in law, though the truth at the trial may disclose no liability upon the resident defendant. It follows, from the foregoing, that plaintiff’s motion to remand should be sustained, and the cause is accordingly remanded to the state court.