Whether there was a joint liability of defendants sued jointly
for negligence is a matter of state law, and this Court will not go
behind the decision of the highest court of the state to which the
question can go.
Southern Railway Co. v. Miller,
217 U. S. 209.
Page 227 U. S. 185
The motive of the plaintiff in joining defendants, taken by
itself, does not affect the right to remove. If there is a joint
liability, he has a right to enforce it, whatever his reason may
be.
Chicago, Burlington & Quincy Ry. Co. v. Willard,
220 U. S. 413.
The fact that the resident defendant joined in a suit with a
rich nonresident corporation is poor does not affect the case if
the cause of action against them actually be joint.
Whether or not a cause of action was stated against the resident
defendant is a question of state law, and where the verdict went
against that defendant and was affirmed by the highest court of the
state to which it could go, this Court takes the fact as
established.
The fact that the declaration was amended after the petition to
remove had been denied
held immaterial where, as in this
case, it merely made the original cause of action more precise.
On the question of removal, this Court need not consider more
than whether there was a real intention to get a joint judgment,
and whether the record showed colorable ground for it when the
removal was denied.
145 Mo.App. 332 affirmed.
The facts, which involve the right of separate removal by a
nonresident railway company sued jointly with a resident defendant
by an employee for damages for negligence, are stated in the
opinion.
Page 227 U. S. 192
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action for personal injuries, brought by Schwyhart
against the railway company and those of its servants to whose
immediate negligence the injuries were alleged to have been due.
There was a verdict and judgment against the company and the
defendant Barrett, but at the proper time a petition had been filed
by the railway company for the removal of the action to the circuit
court of the United States, and it now contends that all subsequent
proceedings in the state courts were void. 145 Mo.App. 332.
The declaration alleged that the plaintiff was employed by the
company as hostler under Barrett as foreman; that it was his duty
under Barrett's direction to uncouple the air brake and signal hose
from between the ends of the cars on a specified train; that
Barrett ordered him to do so, and that, while he was between the
cars, owing to their proceeding in an unusual manner that is
stated, he was crushed, and further, that Barrett negligently
ordered him into the dangerous situation without giving him warning
of the danger, and by his order and presence assured plaintiff that
the work could be proceeded with safely when, by the exercise of
ordinary care on Barrett's part, the injury could have been
avoided. After the petition
Page 227 U. S. 193
for removal had been overruled, the declaration was amended by
inserting as to Barrett, "although he well knew of plaintiff's
danger and the unusual way by which the said Pullman car was to be
switched."
The defendants other than the railway were residents of
Missouri, and the petition for removal charged that they were
joined for the sole and fraudulent purpose of preventing a removal.
The grounds stated for the charge of fraudulent joinder were that
the declaration disclosed no cause of action against those
defendants, that the company and they were not jointly liable, and
that they were persons of little or no property, while the company
was fully able to pay. It will be sufficient to consider these
grounds with reference to Barrett alone, the party that ultimately
was held.
The joint liability of the defendants under the declaration as
amended is a matter of state law, and upon that we shall not
attempt to go behind the decision of the highest court of the state
before which the question could come.
Southern Ry. Co. v.
Miller, 217 U. S. 209,
217 U. S. 215.
That court might hold that the declaration averred the plaintiff to
have been led by Barrett into a trap that was set and snapped by
the company, the latter being also liable for Barrett's share in
the deed. Again, the motive of the plaintiff, taken by itself, does
not affect the right to remove. If there is a joint liability, he
has an absolute right to enforce it, whatever the reason that makes
him wish to assert the right.
Chicago, Burlington & Quincy
Ry. Co. v. Willard, 220 U. S. 413,
220 U. S. 427;
Illinois Central R. Co. v. Sheegog, 215 U.
S. 308,
215 U. S. 316.
Hence, the fact that the company is rich and Barrett poor does not
affect the case.
The remaining justification for the charge of fraudulent intent
is that no cause of action was stated against Barrett. That again
is a question of state law, and that the plaintiff had such a cause
of action in fact must be taken
Page 227 U. S. 194
now to be established. The suggestion that mere nonfeasance is
alleged is shown to be unfounded by the statement that we have
made. It is true that the declaration was amended after the
petition to remove had been denied, but the amendment, if not
unnecessary, merely made the original cause of action more precise.
On the question of removal, we have not to consider more than
whether there was a real intention to get a joint judgment, and
whether there was a colorable ground for it shown as the record
stood when the removal was denied. We are not to decide whether a
flaw could be picked in the declaration on special demurrer. As the
record stood, Barrett was alleged negligently to have ordered the
plaintiff into a dangerous place, and by his conduct to have
assured the plaintiff of safety when, if Barrett had used ordinary
care, the plaintiff need not have been hurt. To add that Barrett
knew the specific source of the danger is merely to make plainer
what evidently was meant before.
Judgment affirmed.
