In the absence of bad faith, the motive of the plaintiff in
making defendant.s parties who are jointly liable does not affect
the right to remove the case.
Whether the complaint states a cause of action against the
resident defendant joined with a nonresident defendant is a matter
of state law.
Where, as in this case, the injured plaintiff had under the law
of the state a right of action against a nonresident railroad
company and also against one of its employees who is a resident, he
has the right to join them both as defendants, and the nonresident
cannot, in the absence of showing fraud on the part of the
plaintiff, remove the case as to it into the federal court.
Merely to traverse the plaintiff's allegations upon which the
liability of resident defendant rests or to apply the epithet
fraudulent to the joinder is not sufficient -- the showing of fraud
must compel the conclusion that the joinder was so absolutely
without reasonable basis as to be made in bad faith.
252 Mo. 439 affirmed.
The facts, which involve the validity of the removal from the
state to the federal court of a case against joint
Page 239 U. S. 422
tortfeasors, one of which was a railroad company not a resident,
and the other an individual resident, of plaintiff's state, are
stated in the opinion.
Page 239 U. S. 423
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action for damages, brought against the Chicago, Rock Island,
& Pacific Railway Company and Frank Drake, as defendants, in
the Circuit Court of Clinton County, State of Missouri.
The action was for personal injuries inflicted upon defendant in
error by Drake, who was a conductor on a train of the railway
company. It is alleged that Drake,
"while acting in the line of his duties to defendant railway
company as such conductor and agent, and in the course of his
employment, approached plaintiff (who was then sitting on the top
of one of the cars in said train) . . . and wrongfully and
kicked him from the train while it was running at a high rate of
speed, plaintiff being without fault. The injuries received were
detailed, and judgment was prayed for $15,000.
The railway company filed a petition for removal of the case to
the United States Circuit Court for the Western District of
Missouri in which it was alleged that the controversy was between
citizens of different states, the plaintiff in the action being a
citizen of Missouri and the railway company a citizen of Illinois.
That the alleged cause of action was a separable controversy
capable of determination between the plaintiff and the railway
company; that Drake was joined as defendant for the sole and
fraudulent purpose of preventing the company from removing the
action from the state court, and thereby defeating the jurisdiction
of the United States circuit court.
Page 239 U. S. 424
That plaintiff did not have and could not have had any cause of
action against Drake or upon which to base a recovery against him,
all which was known to plaintiff at the time of the institution of
the action; that Drake was a man of small means, having but little
property from which a judgment could be recovered, while the
railway company had property more than sufficient to pay the amount
sued for. That any act of negligence on the part of Drake was an
act of the railway company, and it was accordingly responsible and
liable for the same. That plaintiff, when he instituted the action,
had no reasonable hope, intention, or expectation of recovering any
judgment against Drake.
A bond was duly tendered, and the petition was accompanied by
two affidavits which in effect contradicted the allegations of the
petition as to Drake by showing that he was not on top of the
train, and could not have attempted nor have done the acts charged
The petition for removal was denied, and the case subsequently
tried to a jury which returned a verdict for plaintiff in the sum
of $8,500, upon which judgment was entered. It was affirmed by the
supreme court of the state.
There is but one question presented: the correctness of the
ruling upon the petition for removal to the United States circuit
court. The railway company assails the ruling in an elaborate
argument and by an industrious review of cases. In reply, recent
decisions of this Court need only be considered.
The supreme court of the state decided that the petition stated
a cause of action against Drake and the railway company, and
whether it did, we said in Chicago, Rock Island & Pacific
Ry. v. Schwyhart, 227 U. S. 184
a matter of state law. We held further that "the motive of
plaintiff, taken by itself, does not affect the right to remove,"
and that, "if there is a joint liability he has an
Page 239 U. S. 425
absolute right to enforce it, whatever the reason that makes him
wish to assert the right." In that case, as in this, there was a
petition for removal on the ground of fraudulent joinder of
defendants to defeat federal jurisdiction. The cases are
In Chesapeake & Ohio Ry. v. Cockrell, 232 U.
, it was decided that it is not enough to assert
that there was a fraudulent joinder of defendants, but there must
be "a statement of facts rightly engendering that conclusion," and
"merely to traverse the allegations upon which the liability of
the resident defendant is rested or to apply the epithet
'fraudulent' to the joinder will not suffice: the showing must be
such as compels the conclusion that the joinder is without right
and made in bad faith."
And "it was not such," it was said, "unless it was without any
There is nothing more than a traverse of the cause of action in
the present case. The attempt was made to show that Drake could not
have been guilty as charged because he was elsewhere on the train.
The language of the cited case is again applicable: "As no
negligent act or omission personal to the railway company was
charged, and its liability, like that" of its employee,
"was, in effect, predicated upon the alleged negligence of the
latter, the showing manifestly went to the merits of the action as
an entirety, and not to the joinder -- that is to say, it indicated
that the plaintiff's case was ill founded as to all the
We conclude here, as we concluded there, that the plaintiff has
a right of action under the law of the state and to insist upon
Drake's presence as a real defendant "as upon that of the railway
company." There was no error, therefore, in the ruling of the
supreme court, and its judgment is