In an action in which no application for removal to the federal
court was made at any time,
held that, if the right
existed, it furnished no defense to the action on the merits in the
state court.
In instructing the jury that railroads are required to keep
their appliances in good and suitable order, no right arising under
the Act of March 2, 1893, in respect of automatic couplers was
denied, nor was any such specially set up or claimed within § 709,
Rev.Stat.
Carson, a resident of Greenville County, South Carolina, brought
this suit in the court of common pleas of that county against the
Southern Railway Company, a corporation chartered under the laws of
the State of Virginia, and engaged in running trains through
several states as a common carrier, and J. C. Arwood and J. D.
Miller, residents of Greenville County, to recover damages for
personal injuries, which, he charged in his complaint,
"were due to the joint and concurrent negligence, carelessness,
and fault of the defendants, and to their joint and concurrent
recklessness, carelessness, willfulness, and wanton disregard of
the plaintiff's rights and safety, in the following manner,
to-wit:"
setting forth the circumstances of his cause of action. Among
other things, plaintiff alleged that he was a flagman in the
employment of the Southern Railway Company, and on the day of the
accident was ordered by Arwood, the conductor in charge of a
certain freight train, on which Miller was engineer, to do the work
of brakeman, and to couple some of the cars in the train; that
these cars were provided with automatic couplers, but one of them
was not in proper condition, which rendered it necessary for
plaintiff to go between the cars to effect the coupling, and that
the accident
Page 194 U. S. 137
thereupon happened by reason of defendants' "joint and
concurrent carelessness, negligence, recklessness," etc., in
particulars detailed.
Defendants severally demurred, the demurrers were overruled, and
defendants excepted. Defendants then answered severally, in
identical terms, denying all negligence on the part of defendant
and asserting "that the plaintiff's alleged injury was the result
of his own negligence." Trial was had, and the jury found for
plaintiff, against the railway company, judgment was entered, and
the railway company appealed to the supreme court of the state.
That court affirmed the judgment, 46 S.E. 525, and thereupon this
writ of error was allowed.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This case comes before us on motions to dismiss or affirm. There
was certainly color for the motion to dismiss, as we retain
jurisdiction with hesitation, and we will dispose of the case on
the motion to affirm.
By some of the many exceptions preserved on the trial, and
disposed of by the state supreme court, it was sought to raise
federal questions in respect of the acts of Congress (1) providing
for the removal of cases from a state court to a court of the
United States, and (2) providing that railroad companies engaged in
interstate commerce shall equip their cars with automatic
couplers.
1. The railway company did not at any time apply for the removal
of the cases to the circuit court. Plaintiff below and the
company's two codefendants were citizens of the same state, and the
railway company did not make application to
Page 194 U. S. 138
remove before trial on the ground of separable controversy or
want of good faith in the joinder. Nor did it make such application
when plaintiff's evidence was in, nor on the whole evidence. There
was no suggestion throughout the trial that the joinder was, in
itself, improperly made, but the contention, as exhibited by the
exceptions, was that a verdict could not be rendered against the
company alone, because, if it had been sued alone, it would have
had the right of removal. The trial court charged that jury that,
if the proof failed to show joint and concurrent negligence on the
part of all the defendants, yet showed negligence on the part of
one or more of them, resulting in injury to plaintiff, as the sole
and proximate cause thereof, the jury might find a verdict against
such defendant or defendants as the proof showed were guilty of
such negligence, and to this instruction the railway company
preserved an exception.
The railway company also excepted to the refusal of the court to
give several instructions asked on its behalf to the effect that,
as by the allegation of a joint and concurrent tort, the company
had been deprived of the right to remove the cause, joint and
concurrent tort must be made out against the company and at least
one of the other defendants; that to allow plaintiff to recover
without proof of joint and concurrent tort would deprive the
company of the right of removal guaranteed by the Constitution and
laws, and of its property without due process of law, in
contravention of the Fourteenth Amendment, in that the company
would be deprived of the right of reimbursement which would
otherwise exist. But these are matters upon the merits, and
recovery against one of several defendants does not depend on
whether, if sued alone, that defendant might have removed the case.
The right of removal depends on the act of Congress, and the
company not only, on the face of the pleadings, did not come within
the act, but it made no effort to assert the right. The rule is
well settled, as stated by Mr. Justice Gray in
Powers v.
Chesapeake & Ohio Railway Company, 169 U. S.
92,
"that an action of
Page 194 U. S. 139
tort, which might have 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."
The view thus expressed was reiterated in
Chesapeake &
Ohio Railway Company v. Dixon, 179 U.
S. 131, where the subject was much considered, and cases
cited. Reference was there made to the fact that 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. And
such is the law in South Carolina.
Schumpert v. Southern
Railway Company, 65 S.C. 332. In that case, it was held that,
under the state Code of Civil procedure, in actions
ex
delicto, acts of negligence and willful tort might be
commingled in one statement as causes of injury; that master and
servant are jointly liable as joint tortfeasors for the tort of the
servant, committed within the scope of his employment, and while in
the master's service; that the objection that, if master and
servant were made jointly liable for the negligence of the latter,
the master could not call on the servant for contribution was
without merit, as the rule was, as laid down by Mr. Cooley (Torts,
page 145), that:
"As between the company and its servants, the latter alone is
the wrongdoer, and in calling upon him for indemnity, the company
bases no claim upon its own misfeasance or default, but
Page 194 U. S. 140
upon that of the servant himself."
And see Gardner v. Southern Railway Company, 65 S.C.
341. In
Rucker v. Smoke, 37 S.C. 380, and
Skipper v.
Clifton Mfg. Co., 58 S.C. 143, it was decided that in actions
such as this exemplary damages may be recovered. The suggestion
that the state deprived the company of its property by the rulings
of the supreme court calls for no remark.
2. The Act of March 2, 1893, 27 Stat. 531, c. 196, provided, in
respect of common carriers engaged in interstate commerce,
"that, on and after the first day of January, eighteen hundred
and ninety-eight, it shall be unlawful for any such common carrier
to haul or permit to be hauled or used on its line any car used in
moving interstate traffic not equipped with couplers coupling
automatically by impact, and which can be uncoupled without the
necessity of men going between the ends of the cars."
The trial court, in one of its instructions, set forth this
provision and told the jury that, if they found the railway company
was engaged, and these cars were being used, in interstate traffic,
and that they were not equipped with the automatic couplers
required, such failure was negligence, and it was further charged
that railroads were required to keep their appliances in safe and
suitable order. It is objected that the instructions assumed that,
if the automatic coupler was out of repair, the company failed to
comply with the act of Congress; but we do not think so, and the
supreme court of the state held that there was no error, as
Congress must have intended that the couplers should be kept in
proper repair for use, and moreover, as such was the law of the
state, even if the act of Congress had not specifically imposed
this duty. By this ruling, no right specifically set up or claimed
under the act of Congress by defendant below was decided against.
There was no pretence that the act of Congress provided that the
automatic couplers need not be kept in order, and whether the cars
in question were used in moving interstate traffic and whether the
coupling appliances were defective or not, were facts left to the
jury, and determined by their verdict. The recovery
Page 194 U. S. 141
was not sought on the single ground of want of safe appliances.
That was important in its connection with Carson's being ordered to
go between the cars, and it was negligence while he was obeying
that order, which was chiefly relied on. At all events, the company
did not specially set up or claim any right under the act of
Congress or dependent on its construction which was denied by the
state courts, and the questions raised on these instructions, and
numerous others on various aspects of the case, were not federal
questions, and need not be considered.
Judgment affirmed.