148 F. 73 | D. Mont. | 1906
(after stating the facts). The counsel for the defendant corporation have presented a learned and elaborate brief, urging reasons wiry jurisdiction is in this court. But after a Very careful study of the opinion of the Supreme Court in Alabama G. S. R. Co. v. Thompson, 300 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, and of the allegations of plaintiffs’ complaint herein, I am convinced that, upon the face of the complaint, the action appears to be joint. The defendants owed a common-law duty to plaintiffs’ intestate. This duty was independent of any contract, and a right to recover may be founded upon a neglect of such duty. The action is, therefore, ex delicto, and defendants, joint tort-feasors, may be sued separately or jointly, as plaintiffs elect. Sessions v. Johnson, 95 U. S. 347, 34 L. Ed. 596.
In Doremus v. Root et al. (C. C.) 94 Fed. 760, Judge Hanford, with remarkable terseness, stated the controlling propositions and rules which must be held applicable to the case at bar. He said:
“(1) An action to recover unliquidated damages for a personal injury caused by negligence, although the negligence complained of amounts to a breach of contract on the part of the defendant, belongs to the class of cases denominated ‘actions ex delicto.’ The tort is the ground of action, and the law of torts must govern the case. In such a case the plaintiff may join several as defendants, and if upon the.trial he falls to sustain his complaint against all, but does sustain it against one of them, he may dismiss as to the others and recover against the one found to be liable. Railway Co. v. Laird, 164 U. S. 393-403, 17 Sup. Ct. 120, 41 L. Ed. 485.
“(2) In such an action against several defendants, sued as If they were jointly liable to the plaintiff, they must all meet the plaintiff upon the ground chosen by him; and, even though the complaint shows affirmatively that they have not acted jointly in such a manner as to incur a joint liability, still they cannot divide the cause, so as to present a separate controversy as to the separate acts of each. The defendants are not permitted to recast the Issues tendered by the complaint, so as to make several lawsuits in place of the one case which the plaintiff has elected to prosecute against them all jointly. Little v. Giles, 118 U. S. 596-608, 7 Sup. Ct. 32, 30 L. Ed. 269.
“(3) When the right to remove a case from a state court into a United States circuit court depends upon the nature of the controversy and the questions to be litigated, the complaint alone Is to be considered for the purpose of ascertaining the nature of . the controversy, and finding out what questions are involved. Although defendants by their pleadings may introduce new matter and raise additional questions, they cannot so change the case as to make it cognizable in a federal court, if it was not so at the outset. Walker v. Collins, 167 U. S. 57-60, 17 Sup. Ct. 738, 42 L. Ed. 76.
“(4) Where two defendants are sued together, and the plaintiff demands judgment against both, the court cannot assume that either one of them is the real party against whom the plaintiff intends to wage his action, and that the other has been joined as a codefendant merely for the fraudulent purpose of depriving the real defendant of his right to remove the case into a United States circuit court. In order to sustain the jurisdiction of the federal court on that ground, It is necessary for the removing defendant to allege and prove such fraudulent purpose on the part of the plaintiff. Warax v. Railway Co. (C. C.) 72 Fed. 637.”
A joint cause of action being alleged, the following language of Justice Day seems determinative of the question presented by the motion:
“Does this become a separable controversy within the meaning of the act of Congress because the plaintiff has misconceived his cause of aetion, and*76 had no right to prosecute the defendants jointly? We think, in the light of the adjudications 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.”
Nor can the motion be denied because of the alleged fraud in joining Jackson as a defendant. Plaintiffs had a right to join him as a defendant, and appear to have done so in good faith. Having a right so to proceed against all defendants, and having stated a joint cause of action, their motive in joining all defendants is not the proper subject of inquiry in this court. Finding no issue to be tried as to fraudulent joinder, I hold the point not well taken.
The motion to remand is sustained, and the cause is ordered remanded to the District Court of the Second Judicial District of the state of Montana in and for the county of Silver Bow.