Chicago, Rock Island & Pacific Ry. Co. v. Dowell
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229 U.S. 102 (1913)
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U.S. Supreme Court
Chicago, Rock Island & Pacific Ry. Co. v. Dowell, 229 U.S. 102 (1913)
Chicago, Rock Island & Pacific Railway Company v. Dowell
Submitted April 14, 1913
Decided May 26, 1913
229 U.S. 102
Quaere whether liability to a third person against the master may result from the servant's neglect of some duty owing to the employer alone.
Positive acts of negligence on the part of an engineer while engaged in his employer's business toward a fellow servant are acts of misfeasance for which he is primarily liable notwithstanding his contract with his employer and the liability of the latter under the state statute.
If plaintiff allege that the concurrent negligence of both defendants caused his injury, he may join them in one action, and if he do so, the fact that he might have sued them separately furnishes no ground for removal.
Whether or not defendants are jointly liable depends on plaintiff's averments in the statement of his cause of action, and it is a question for the state court to decide.
If the state court so decides, a plaintiff may join joint tortfeasors even though the liability of one is statutory and the liability of the other rests on the common law.
While issues of fact arising on the controverted allegations in a petition for removal are only triable in the federal court, the state court may deny the petition if it is insufficient on its face.
Mere averment that a resident defendant, in this case an employee of small means, is fraudulently joined with a nonresident defendant of undoubted responsibility for the purpose of preventing removal by the latter is not sufficient to raise an issue of fraud in the absence of other averments of actual fraud. The motive of plaintiff in such a case is immaterial; if the right of joinder exists, he can exercise it.
83 Kan. 562 affirmed.
The facts, which involve the construction of the Removal Act and what constitutes a separable controversy as to a nonresident defendant sued jointly with a resident defendant, are stated in the opinion.