72 Fed. 637; Beuttel v. Chicago, M. & St. [117 N. Y. 546, 23 N. E. 564; Van Antwerp P. R. Co. 26 Fed. 50; Fergason v. Chicago, v. Linton, 89 Hun, 417, 35 N. Y. Supp. 318; M. & St. P. R. Co. 63 Fed. 177; Hartshorn | Feltus v. Swan, 62 Miss. 415; Steinhauser v. Atchison, T. & S. F. R. Co. 77 Fed. 9; v. Spraul, 127 Mo. 541, 27 L.R.A. 441, 28 Doremus v. Root, 94 Fed. 760; Helms v. S. W. 620, 30 S. W. 102; Delaney v. Northern P. R. Co. 120 Fed. 389; Daven- | Rochereau, 34 La. Ann. 1128, 44 Am. Rep. port v. Southern R. Co. 124 Fed. 983; Gus- 456; Henshaw v. Noble, 7 Ohio St. 226; tafson v. Chicago, R. I. & P. R. Co. 128 Kelly v. Chicago & A. R. Co. 122 Fed. 289; F. 87; Shaffer v. Union Brick Co. 128 Davenport v. Southern R. Co. 124 Fed. 984. Fed. 99; McIntyre v. Southern R. Co. 131 Joint liability is the test of a separable Fed. 985. controversy.

Nelson v. Hennessey, 33 Fed. 113; Collins v. Wellington, 31 Fed. 244; Gableman v. Peoria, D. & E. R. Co. 179 Ú. S. 337, 45 L. ed. 221, 21 Sup. Ct. Rep. 171; Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 45 L ed. 121, 21 Sup. Ct. Rep. 67.

In tort the action is not joint merely because the plaintiff chooses to name a number of persons defendants. To have that effect it is necessary that the pleading show a right to make them defendants.

Powers v. Chesapeake & O. R. Co. 169 U. S. 96, 42 L. ed. 674, 18 Sup. Ct. Rep. 264. Messrs. Edmund F. Trabue and Edward while employed in the service of his master, reason why an action will not lie against both jointly,"

Colston also filed a brief for the Alabama | Southern R. Co. 65 S. C. 335, 95 Am. St. Great Southern Railroad Company:

A controversy between two persons, citizens of different states, may exist in any suit, and be separable from the rest of the suit, and determinable between those two persons of diverse citizenship, and in so determining no account whatever is taken of whether, in the state court, such controversy would be regarded as separable from the rest of the suit, or as determinable between the petitioner for removal and his adversary in the controversy alone.

Removal Cases, 100 U. S. 457, 468, 25 L. ed. 593, 598; Blake v. McKim, 103 U. S. 336, 337, 26 L. ed. 563, 564; Evers v. Watson, 156 U. S. 527, 39 L. ed. 520, 15 Sup. Ct. Rep. 430; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514.

Federal jurisdiction cannot be abridged or modified by any state statute.

Hyde v. Stone, 20 How. 173, 15 L. ed. 875; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418.

The right of removal is as immune from regulation by state statute as is the right of resort to Federal equity jurisdiction.

Wabash Western R. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126. Mr. E. S. Daniels submitted the cause for Thompson, Administrator. Messrs. J. V. Williams and John O. Benson were on the brief:

Under the practice and laws of Tennessee, the supreme court of such state recognizes the right to jointly sue the master and servants under like circumstances as those existing in this case, and this being true, the Federal courts in most, if not all, the cases in which the question of the state law and practice were involved, have unreserved ly held that they will follow the practice and adjudications of the state court on such questions.

Connell v. Utica, U. & E. R. Co. 13 Fed. 241; Charman v. Lake Erie & W. R. Co. 105 Fed. 449; Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Rep. 67; Southern R. Co. v. Carson, 194 U. S. 136, 48 L. ed. 907, 24 Sup. Ct. Rep. 609; Swain v. Tennessee Copper Co. 111 Tenn. 433, 78 S. W. 93; Jones v. Ducktown Sulphur, Copper, & I. Co. 109 Tenn. 375, 71 S. W. $21.

While the authorities are in conflict as to the right of joinder under the facts certified in this case, still, we believe the authorities, both in numbers and reasoning, largely preponderate in favor of the right of joinder. Charman v. Lake Erie & W. R. Co. supra; Riser v. Southern R. Co. 116 Fed. 215; Chesapeake & O. R. Co. v. Dixon, and Southern R. Co. v. Carson, supra; Wright

Rep. 802, 43 S. E. 813; Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507; Phelps v. Wait, 30 N. Y. 78; Cincinnati, N. O. & T. P. R. Co. v. Cook, 113 Ky. 161, 67 S. W. 383; Winston v. Illinois C. R. Co. 111 Ky. 954, 55 L.R.A. 603, 65 S. W. 13; Schaefer v. Osterbrink, 67 Wis. 495, 58 Am. Rep. 875, 30 N. W. 922; Newman v. Fowler, 37 N. J. L. 89; 1 Shearm. & Redf. Neg. 5th ed. § 248; Cooley, Torts, 1st ed. 142; Wood, Mast. & S. 2d ed. § 325; 1 Estee, Pl. § 1834; 15 Enc. Pl. & Pr. p. 560.

The rule that there can be no contribution between joint tort feasors has no application in cases where the master is held liable for the negligence of the servant under the rule of respondeat superior.

Gray v. Boston Gaslight Co. 114 Mass. 149, 19 Am. Rep. 324; Story, Partn. § 220; Betts v. Gibbins, 2 Ad. & El. 57; Wooley v. Batte, 2 Car. & P. 417; Bailey v. Bussing, 28 Conn. 455; 7 Am. & Eng. Enc. Law, pp. 364-366.

When the removal is based upon the allegation of a separable controversy, the whole suit goes to the Federal court.

Barney v. Latham, 103 U. S. 205, 26 L. ed. 514.

There, must exist, therefore, as shown by the pleading, two or more distinct controversies, or there must exist in the suit a separate and distinct cause of action, or the case must be one capable of separation into parts.

Geer v. Mathieson Alkali Works, 190 U. S. 428, 432, 47 L. ed. 1122, 1124, 23 Sup. Ct. Rep. 807.

Mr. Justice Day delivered the opinion of the court:

This case is here on a certificate from the United States circuit court of appeals for the sixth circuit. The certificate states the facts and propounds the questions as follows:

"This was an action in tort, brought by the administrator of Florence James for the negligent killing of the intestate by the defendant railroad company.

"The suit was started in a circuit court of the state of Tennessee, and a declaration was there filed.

"The plaintiff was a citizen of Tennessee. "The defendants were the Alabama Great Southern Railway Company, a corporation organized under the laws of Alabama, and William H. Mills and Edgar Fuller, both citizens of the state of Tennessee.

"The case was then removed into the court below upon petition of the railroad company alone, upon the ground that a separable controversy, involving more than v. Compton, 53 Ind. 337; Schumpert v. $2,000, exclusive of interest and costs, ex444

isted between the petitioner and the plain- | company as joint tort-feasors being identitiff, as to whom diversity of citizenship ex-cal with that of the plaintiff ?" isted, which could be tried out without the presence of either of the individual code fendants of petitioner. [212] *"A motion to remand to the state court because no removable separable controversy appeared was overruled.

"Thereupon an issue was made and the case heard by court and jury, and a judgment rendered in favor of the plaintiff, and against the railroad company alone. "From this judgment the railroad company sued out this writ of error.

"Upon the hearing in this court, the court raised the question as to whether the court below had rightfully acquired jurisdiction by the removal proceedings referred to, the removal being grounded only upon the question of separable controversy appearing upon the face of the declaration of the plaintiff at the time of the application for removal.

"That declaration substantially averred that the intestate of the plaintiff had been negligently, wrongfully, and carelessly run over while upon the track of the railroad company, in the exercise of due care, by an engine and train of cars owned and operated by the railroad company, which said train was, at the time, under the management and control of the individual defendants, William H. Mills, as conductor, and Edgar Fuller, as engineer.

"Entertaining grave doubt as to whether a joint right of action was stated against the railroad company and the two individual defendants, who were servants of the ailroad company, it is ordered that the foregoing statement be certified to the Supreme Court, and that the instruction of that court be requested for the proper decision of the following questions which arise upon the record:

A question certified must be one the an-
swer to which is to aid the court in deter-
mining a case before it. Columbus Watch
Co. v. Robbins, 148 U. S. 266, 37 L. ed. 445,
13 Sup. Ct. Rep. 594. And it is evident
that the matter to be determined in the case
pending, desiring which the opinion of this
court is asked, is the removability of the
case brought in the state court against the
railroad company and the individual defend-
ants.
We shall answer the questions in

that view.

The right to remove the controversy is founded upon § 2 of the act of March 3, 1887 [24 Stat. at L. 553, chap. 373], as corrected August 13, 1888 (1 U. S. Rev. Stat. Supp. 611, U. S. Comp. Stat. 1901, p. 509). It is therein provided, among other things, "and when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district."

The case was removed upon the theory that it contains a separable controversy between the nonresident railroad company and the plaintiff. The removal act of 1875 [18 Stat. at L. 470, chap. 137], as amended in 1887-88, in the part quoted above as to separable controversies, has been the subject of frequent adjudication in this court. Independent of statute, there is much conflict in the authorities as to whether a corporation whose liability does not arise from an act of concurrence or direction on its part, but solely as a result of the relation of master and servant, may be jointly sued with the servant whose negligent conduct "1. May a railroad corporation be jointly directly caused the injury. In a leading [214] sued with two of its servants, one the concase in this court (Chesapeake & O. R. Co. ductor and the other the engineer of one of v. Dixon, 179 U. S. 131, 45 L. ed. 121, 21 its trains, when it is sought to make the Sup. Ct. Rep. 67), many of the cases were corporation liable only by reason of the neg-reviewed by the chief justice who delivered ligent act of its said conductor and engineer in the operation of a train under their management and control, and solely upon the ground of the responsibility of a principal for the act of his servant, though not per[213]sonally *present or directing, and not charged with any concurrent act of negligence?

"2 Is such a suit removable by the corporation, as a separable controversy, when the amount involved exceeds $2,000, exclusive of interest and costs, and the requisite diversity of citizenship exists between the said company and the plaintiff, the citizenship of the individual defendants sued with the

the opinion, and it was shown that in a number of English and American cases it

has been held that, as to third persons, the his servant in a joint action against both, master is responsible for the negligence of to recover damages for an injury. In the case of Warax v. Cincinnati, N. O. & T. P. R. Co. 72 Fed. 637, a case which has been much cited and sometimes followed in the Federal courts, it was held that a joint action could not be sustained against master and servant for acts done without the master's concurrence or direction, when his responsibility arises wholly from the policy of the law, which requires that he shall be

held liable for the acts of those he employs, elin, 132 U. S. 599, 600, 33 L. ed. 474, 475,
in the prosecution of his business. And it 10 Sup. Ct. Rep. 203, the same eminent
was held that the petition against the en-judge, speaking for the court, said:
gineer and the company presented a case of
misjoinder, and could be removed on the
application of the nonresident company.

"It often has been decided that an action
brought in a state court against two jointly
for a tort cannot be removed by either of
In the case of Powers v. Chesapeake & O. them into the circuit court of the United
R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. States, under the act of March 3, 1875, chap.
Ct. Rep. 264, 265, suit was brought against 137, § 2, upon the ground of a separable con-
a railroad company and several of its serv-troversy between the plaintiff and himself,
ants for an injury alleged to have been although the defendants have pleaded sever-
caused by the joint negligence of all. Mr. ally, and the plaintiff might have brought
Justice Gray, delivering the opinion of the the action against either alone. 18 Stat. at
court, said:
L. 471, U. S. Comp. Stat. 1901, p. 508;
Pirie v. Tvedt, 115 U. S. 41, 29 L. ed. 331,
5 Sup. Ct. Rep. 1034, 1161; Sloane v. An-
derson, 117 U. S. 275, 29 L. ed. 899, 6 Sup.
Ct. Rep. 730; Plymouth Consol. Gold Min.
Co. v. Amudor & S. Canal Co. 118 U. S. 264,
30 L. ed. 232, 6 Sup. Ct. Rep. 1034; Thorn
Wire Hedge Co. v. Fuller, 122 U. S. 535, 30
L. ed. 1235, 7 Sup. Ct. Rep. 1265.

"It is well settled that an action of 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 [215]*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 plead-tice Waite in delivering the opinion of the ings.' Pirie v. Tvedt, 115 U. S. 41, 43, 29 L. ed. 331, 332, 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Anderson, 117 U. S. 275, 29 L. ed. 899, 6 Sup. Ct. Rep. 730; Little v. Giles, 118 U. S. 596, 600, 601, 30 L. ed. 269-271, 7 Sup. Ct. Rep. 32; Louisville & N. R. Co. v. Wangelin, 132 U. S. 599, 33 L. ed. 474, 10 Sup. Ct. Rep. 203; Torrence v. Shedd, 144 U. S. 527, 530, 36 L. ed. 528, 531, 12 Sup. Ct. Rep. 726; Connell v. Smiley, 156 U. S. 335, 340, 39 L. ed. 443, 444, 15 Sup. Ct. Rep. 353."

"It is equally well settled that in any case the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition, or in the affidavit of the petitioner, unless the petitioner both alleges and proves that the defendants were wrongfully made *joint defendants for the purpose of pre-[216] venting a removal into the Federal court."

After thus stating the rule, the justice commented on the Warax Case, 72 Fed. 637, as a departure from the former ruling of the circuit court. And while the Powers Case was decided on the ground of the right to remove after the local defendants had been dismissed from the action by the plaintiff, it is patent from the language just quoted from the opinion that, conceding the misjoinder of causes of action appeared on the face of the petition, that fact was not decisive of the right of the nonresident defendant to remove the action to the Federal court.

And in Louisville & N. R. Co. v. Wang

The language quoted by Mr. Justice Gray in the Powers Case was used by Chief Jus

court in Louisville & N. R. Co. v. Ide, 114
U. S. 52, 29 L. ed. 63, 5 Sup. Ct. Rep. 735.
The Chief Justice said: "A defendant has
no right to say that an action shall be
several which a plaintiff elects to make
joint. Smith v. Rines, 2 Sumn. 348, Fed.
Cas. No. 13,100. A separate defense may
defeat a joint recovery, but it cannot de-
prive a plaintiff of his right to prosecute
his own suit to final determination in his
own way." It is true, as suggested by
counsel, that Mr. Justice Gray used the
word "seeks" instead of "elects;" but we
do not perceive that this change deprives
the doctrine announced of its force and ef-
fect.

The language is used of a action begun
in the state court, and it is recognized that
the plaintiff may select his own manner of
bringing his action, and must stand or fall
by his election. If he has improperly joined
causes of action, he may fail in his suit;
the question may be raised by answer, and
the right of the defendant adjudicated.
But the question of removability depends
upon the state of the pleadings and the
record at the time of the application for

prosecute it against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all the defendants. Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. But that is not this case. The joint liability was insisted on here to the close of the trial, and the nonliability of the railway company was ruled in invitum.”

removal (Wilson v. Oswego Twp. 151 U. S., 56, 66, 38 L. ed. 70, 75, 14 Sup. Ct. Rep. 259), and it has been too frequently decided to be now questioned that the plaintiff may elect his own method of attack, and the case which he makes in his declaration, bill, or complaint, that being the only pleading in the case, is to determine the separable character of the controversy for the purpose of deciding the right of removal. Louisville & N. R. Co. v. Ide, 114 U. S. 52, 29 L. ed. 63, 5 Sup. Ct. Rep. 735; Graves v. Corbin, 132 U. S. 571, 33 L. ed. 462, 10 Sup. Ct. Rep. 196; Little v. Giles, 118 U. S. 596, 30 L. ed. 269, 7 Sup. Ct. Rep. 32; East Tennessee, V. & G. R. Co. v. Grayson, 119 U. S. 240, 30 L. ed. 382, 7 Sup. Ct. Rep. *The fact that by answer the defendant [218] 190; Torrence v. Shedd, 144 U. S. 527, 36 may show that the liability is several canL. ed. 528, 12 Sup. Ct. Rep. 726; Chesa- not change the character of the case made peake & O. R. Co. v. Dixon, 179 U. S. 131, by the plaintiff in his pleading so as to af45 L. ed. 121, 21 Sup. Ct. Rep. 67; South-fect the right of removal. It is to rememern R. Co. v. Carson, 194 U. S. 136, 48 L. ed. 907, 24 Sup. Ct. Rep. 609.

In other words, the right to remove depended upon the case made in the complaint against both defendants jointly, and that right, in the absence of a showing of fraudulent joinder, did not arise from the failure of the complainant to establish a joint cause of action.

fully deprive parties entitled to sue in the Federal courts of the protection of their rights in those tribunals.

In the present case there is nothing in the questions propounded which suggests an attempt to commit a fraud upon the jurisdiction of the Federal courts.

bered that we are not now dealing with joinders which are shown by the petition In Whitcomb v. Smithson, 175 U. S. 635, for removal, or otherwise, to be attempts 44 L. ed. 303, 20 Sup. Ct. Rep. 248, an action to sue in the state courts with a view to was brought by Smithson in a state court defeat Federal jurisdiction. In such cases of Minnesota against the Chicago Great entirely different questions arise, and the Western Railway Company and Whitcomb Federal courts may and should take such [217]and Morris, receivers of the Wisconsin Cen-action as will defeat attempts to wrongtral Company, to recover for personal injuries while serving the Chicago Great Western Railway Company as a fireman, as the result of a collision between the locomotive upon which he was at work and one operated by the receivers, who were officers of the Federal court. The railway company answered, and the receivers filed a petition for removal to the United States circuit court. The case was thereafter remanded by the Federal court, that court holding there was no separable controversy, and that the joinder was in good faith. Upon the trial in the state court a verdict was directed by the court in favor of the railway company. Thereupon the receivers asked permission to file a supplemental petition for removal, and upon proffer of a petition and bond the application was denied, and a verdict was returned against the receivers only. Of this feature of the case the Chief Justice, delivering the opinion of the court, said:

"The contention here is that when the trial court determined to direct a verdict in favor of the Chicago Great Western Railway Company, the result was that the case stood as if the receivers had been sole defendants, and that they then acquired a right of removal which was not concluded by the previous action of the circuit court. This might have been so if, when the cause was called for trial in the state court, plaintiff had discontinued his action against the railway company, and thereby elected to

As shown in the opinion of the Chief Justice in the Dixon Case (179 U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Rep. 67), the cases are in difference as to whether a commonlaw action can be sustained against master and servant jointly because of the responsibility of the master for the acts of the servant in prosecuting the master's business. In good faith, so far as appears in the record, the plaintiff sought the determination of his rights in the state court by the filing of a declaration in which he alleged a joint cause of action.

Does this become a separable controversy within the meaning of the act of Congress because the plaintiff has misconceived his cause of action, and 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