[g] (U. S. 1902) An action against the lessor and lessee of a railroad, to recover for the death of an employé of the lessee alleged to have been due to its negligence in operating the road, does not involve a separable controversy which entitles the lessee to remove the cause on the ground of diversity of citizenship, where the plaintiff and lessor are citizens of the same state.Person v. Illinois Cent. R. Co. (C. C.) 118 Fed. 342.

[h] (U. S. 1902) Plaintiff sued two defendants on a joint and several liability, one residing in the same state, and the other a nonresident. No process was served on the resident defendant, and, the cause being called for trial, the nonresident defendant appeared, and moved that plaintiff be required to elect whether she would dismiss as to the resident defendant or continue the cause for service. She declined to do either, but requested that the cause proceed to trial as to the nonresident defendant; whereupon such defendant presented its petition and bond for removal to the federal court. Held, that plaintiff's election to proceed to trial against the nonresident defendant alone operated as a severance of the controversy, and entitled the nonresident defendant to remove the cause.-Berry v. St. Louis & S. F. R. Co. (C. C.) 118 Fed. 911.

[i] (U. S. 1903) An action to recover for a personal injury alleged to have resulted from the concurring negligence of two defendants, each of whom owed a separate duty of care to the plaintiff, is not removable by one defendant, who is a nonresident of the state, on the ground that it involves a separable controversy.—Hoye v. Great Northern Ry. Co. (C. C.) 120 Fed. 712. [j] (U. S. 1903) Rev. St. Mo. 1899, § 1060 (Ann. St. 1906, p. 915) which provides that a railroad company of that state leasing its road to a corporation of another state, or licensing or permitting a corporation of another state, under any running arrangement, to run engines and cars upon its road in the state, shall remain liable, as if it operated the road itself, and that the lessee shall also be liable for its own acts, does not create a joint liability in tort; and an action against the lessor and lessee based on an alleged act of negligence of the lessee presents a separable controversy, and is removable by the lessee where the plaintiff is a citizen of the state.-Kelly v. Chicago & A. Ry. Co. (C. C.) 122 Fed. 286.

[k] (U. S. 1903) A complaint in an action by an employé of a railroad company against such company and others to recover for a personal injury, which alleges that such injury was caused by the negligence of defendant company in failing to maintain its tracks and cars in a safe condition, and to the negligent operation of a car by all of the defendants, without showing what, if any, relation existed between defendants, states a cause of action for a joint tort, which is not separable, so as to entitle the defendant company to a removal, where its codefendants are not shown to be citizens of other states. Fogarty v. Southern Pac. Co. (C. C.) 123 Fed. 973.

[1] (U. S. 1903) An action in which the petition charges concurrent acts of negligence against each of two defendants does not present a separable controversy.-Weaver v. Northern Pac. Ry. Co. (C. C.) 125 Fed. 155.

[m] (U. S. 1905) The declaration in an action in a state court against two railroad companies alleged that one was the owner of certain tracks which it leased to its codefendant, a portion of the trackage being used by the two jointly and a portion exclusively by the lessee; that the lessor kept an employé in charge of a switch connecting the two, whose duty it was to switch the lessee's trains onto the exclusive track when the same was clear; that such employé negligently switched an engine upon which plaintiff was working onto such track at a time when there was another train thereon moving in the opposite direction; that through the negligence of the lessee's employés in charge of such train a collision occurred between the same and the engine on which plaintiff was, in which he was injured. Held, that such declaration did not state a joint cause of action, but a separate and distinct cause against each defendant, and the suit was removable by one defendant which was a citizen of another state.-Yeates v. Illinois Cent. R. Co. (C. C.) 137 Fed. 943.

[n] (U. S. 1905) Where the declaration in an action in a state court against several defendants states a cause of action for a joint tort, the action can

not be held to be one involving a separable controversy for the purposes of removal.-Heffelfinger v. Choctaw, O. & G. R. Co. (C. C.) 140 Fed. 75.

[o] (U. S. 1905) The declaration of an action in a state court by an employé of a railroad company which is a citizen of another state, operating a railroad under a lease from a local company, against both lessor and lessee, to recover for personal injuries alleged to have resulted solely from the negligence of the lessee in operating a train with improper and defective equipment, does not state a joint cause of action against the defendants, but a single cause of action against the lessee alone, and the action is removable by such defendant.-Curtis v. Cleveland, C., C. & St. L. Ry. Co. (C. C.) 140 Fed. 777.

[p] (U. S. (1906) In a suit to enjoin the destruction of a water privilege by diverting water from a stream, the complainant may properly join as defendants the persons who are undertaking such diversion, and one with whom they have contracted to do the work, and ask for a common injunction against all, and in such case there is no separable controversy which entitles the former to remove the cause when the contractor could not.-McMillan v. Noyes (C. C.) 146 Fed. 926.

[q] (U. S. 1907) An action of tort, which may be brought against one or more persons, and which has been brought against two of them jointly, presents no separable controversy which will authorize its removal by one of them.-Blunt v. Southern Ry. Co. (C. C.) 155 Fed. 499.

[r] (Ga. 1902) Although there may, in a suit against two or more defendants, one of whom is a nonresident, be charges of concurrent negligence against all, yet if there be also a distinct charge of negligence against the nonresident alone, sufficient in and of itself to give rise to a cause of action, the case is one involving a separable controversy between citizens of different states, and therefore removable to a federal court.-Southern Ry. Co. v. Edwards, 115 Ga. 1022, 42 S. E. 375.

[s] (Ga. 1910) A petition alleging that a resident defendant, a sawmill corporation, was using by permission the tracks of a railroad defendant to haul logs, that the railroad ran through a certain city, and that it was the duty of both defendants in approaching the crossings of a street to signal, that plaintiff was driving at such crossing and by attempting to cross was damaged by the negligence of both defendants in failing to signal or ring the bell of the engine, and that the drawgates were not down, and it was negligence in both defendants not to lower the drawgates, and that it was the custom and duty of defendants to cause the gates to be lowered, states a cause of action against both defendants, so that the nonresident defendants could not remove the case as a separable controversy.--Atlantic Coast Line R. Co. v. Bryant (App.) 67 S. E. 1049, 1051.

[t] (Miss. 1905) Plaintiff, a brakeman in the employ of defendant G. Railroad Company, alleged that it had an agreement with defendant I. Railroad Company for the use of the latter's switches and yard, subject to the control of the latter company's yardmaster; that, on the occasion of plaintiff's injury, his conductor and such yardmaster negligently ordered the caboose of plaintiff's train to be placed on a specified track; and that, in so placing it, it encountered the corner of a freight car belonging to the I. Company, negligently protruding over the way, but invisible to plaintiff, causing a collision, in which plaintiff was hurt. Held, that such declaration did not allege a separable controversy between plaintiff and the defendant companies, entitling the I. Company, which was the sole nonresident, to remove the case to the federal courts.-Illinois Ceut. R. Co. v. Harris, 85 Miss. 15, 38 South. 225.

[u] (N. C. 1907) A plaintiff may sue tort-feasors jointly or severally, and, if he elects to sue them jointly, he has the right to have the case tried as for a joint tort, and no separable controversy is presented within the removal act (Act March 3, 1875, c. 137, § 2, 18 Stat. 470 [U. S. Comp. St. 1901, p. 509]).—White v. Southern Ry. Co., 59 S. E. 1042.

4. Torts of Master and Servant.

[a] (U. S. 1900) An action against a railroad company and two of its employés, charging them with concurrent negligence in killing a person at a

railroad crossing, is joint, and not several, and therefore cannot be removed into a federal court by the railroad company on the ground of diverse citizenship, when the employés are citizens of the same state as the plaintiff. Judgment, Chesapeake & O. R. Co. v. Dixon's Adm'x (1898) 47 S. W. 615, 104 Ky. 608, 20 Ky. Law Rep. 792, affirmed.-Chesapeake & O. Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121.

[b] (U. S. 1906) A case in which plaintiff, in good faith, has elected to sue jointly in tort a foreign corporation and its servants whose misconduct caused the injury complained of, does not, even though such joinder may be improper, present a separable controversy between plaintiff and the corporation which, under Act March 3, 1875, c. 137, 18 Stat. 470, as amended by Acts March 3, 1887, c. 373, 24 Stat. 553, and Aug. 13, 1888 (1 Rev. St. Supp. 611 [U. S. Comp. St. 1901, p. 509]), can be removed from a state to a federal Circuit Court without regard to the citizenship of the individual defendants. -Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441.

[c] (U. S. 1906) An action to recover damages for a death from negligence, in which plaintiff has, in good faith, exercised his right under the state laws to proceed jointly against a railway company and its employé whose negligence caused the accident, cannot be converted into a separable controversy for the purpose of removal to a federal Circuit Court because of diversity of citizenship between the plaintiff and the railway company. Judgment, Cincinnati, N. O. & T. P. Ry. Co. v. Cook's Adm'r (Ky. 1904) 83 S. W. 580, affirmed.-Cincinnati, N. O. & T. P. Ry. Co. v. Bohon, 200 U. S. 221, 26 Sup. Ct. 166, 50 L. Ed. 448.

[d] (U. S. 1910) A suit in which plaintiff, in good faith, has joined as for a joint liability in tort a foreign railway corporation and certain of its resident employés whose negligence caused the injury complained of, is not removable to a federal Circuit Court as presenting a separable controversy between the plaintiff and the corporate defendant. Judgment (1908) 59 S. E. 1115, 3 Ga. App. 410, affirmed.-Southern Ry. Co. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, Adv. S. U. S. 450, 54 L. Ed.

[e] (U. S. 1904) Where, in an action for wrongful death of plaintiff's intestate, the complaint joined the coemployé by whose alleged negligence plaintiff's intestate was killed, whose citizenship was the same as that of plaintiff, with decedent's employer, which was a foreign corporation, and alleged that such corporation was negligent in supplying an electric crane which was not equipped with good and sufficient brakes or other appliances by which it might be controlled, in consequence of which an iron beam being carried by the crane came in contact with other beams on the shop floor, causing them to fall on deceased, and that the corporation was also negligent in causing the crane to be operated by a young, inexperienced, and unskillful boy, who was alleged to have operated the crane so negligently as to permit the beam being carried to swing against the other beams and cause them to fall, etc., the complaint alleged a joint, and not a separable, controversy against such defendants.-American Bridge Co. v. Hunt, 64 C. C. A. 548, 130 Fed. 302. [f] (U. S. 1904) Where a petition in a state court in an action for injuries to a servant against the master and a servant alleged concurring acts of negligence of the master and the servant, and the servant was of the same citizenship as plaintiff, the case did not present a separable controversy between plaintiff and the master, and was not, therefore, removable to the federal court.-Roberts v. Shelby Steel Tube Co., 65 C. C. A. 589, 131 Fed. 729.

[g] (U. S. 1905) A complaint in an action against a nonresident railroad company and certain of its servants, residents of the state, to recover for the death of a person, caused by acts of the servants committed in the course of their employment, although not by express order or in the presence of any officer of the company, but which acts are charged to have been negligent, willful, reckless, and malicious, does not state a separable cause of action which renders the cause removable by the railroad company alone, under the decisions of the Supreme Court, when it is alleged that the injury occurred through the joint and concurrent negligence of the defendants. Judgment (C. C. 1903) 124 F. 983, reversed.-Davenport v. Southern Ry. Co., 68 C. C. A. 444, 135 Fed. 960.

[h] (U. S. 1899) There can be no joint liability of a railroad company and its employés for an injury alleged to have resulted from the failure of the company and of such employés to perform a duty imposed on the company alone by statute; and in an action to recover for such injury, commenced in a state court against both the company and such employés, the controversy is separable as to the defendants, and the cause may be removed by the railroad company, where it is a citizen of another state, and the other requisites for removal exist.-Prince v. Illinois Cent. R. Co. (C. C.) 98 Fed. 1.

[i] (U. S. 1900) It being the settled rule in Indiana that a master and servant may be jointly sued for an injury resulting from the servant's negligence, such an action brought in a court of that state cannot be severed for the purpose of removal.-Charman v. Lake Erie & W. R. Co. (C. C.) 105 Fed. 449.

[j] (U. S. 1902) An action against a railroad company and one of its conductors to recover for an injury received by plaintiff in a collision, alleged in his complaint to have been caused by the failure of the conductor to observe certain regulations and rules of the company, which failure was due "to the joint and concurrent negligence" of the defendants, is one for a joint tort, and is not removable by the railroad company on the ground that it involves a separable controversy, where plaintiff and the conductor are citizens of the same state.-Riser v. Southern Ry. Co. (C. C.) 116 Fed. 215.

[k] (U. S. 1903) Where, in an action for injuries to a passenger against the railroad company and the conductor of the train, the plaintiff and the conductor were citizens of the same state, but the citizenship of the railroad was diverse, and the complaint charged the railroad company with negligence in accepting and carrying an insane person as a passenger without effective protection, and charged the conductor with negligence in failing to restrain such person so as to prevent assaults which he committed on plaintiff, the negligence of both defendants was concurrent, and the complaint did not present a separable controversy, so as to entitle the railroad company to remove the cause to the federal court.-Dougherty v. Atchison, T. & S. F. R. Co. (C. C.) 126 Fed. 239.

[1] (U. S. 1903) Where the petition in an action against a railroad company and an engineer of one of its trains for negligently causing the death of plaintiff's intestate is based on the Iowa statute giving a right of action for wrongful death, which has never been construed by the courts of the state to create a joint liability in such cases, and alleges acts of negligence on the part of the railroad company with which its codefendant had no concern, and which are essential to make out a cause of action under the state law, a separable controversy is disclosed, and the cause is removable on petition of the railroad company showing diversity of citizenship, and alleging that the joinder of defendants was for the fraudulent purpose of preventing a removal.-Henry v. Illinois Cent. R. Co. (C. C.) 132 Fed. 715.

[m] (U. S. 1904) A complaint against a nonresident railway company and certain of its employés in charge of the train by which deceased was killed, who were of the same citizenship as plaintiff, alleged that, in violation of the rules of the railway company, "defendants negligently, willfully, and maliciously, by their joint, concurrent acts," gave certain box cars a high, unusual, and dangerous rate of speed, uncoupled them from the engine, turned a switch, and permitted them to roll down a steep grade over a crossing, by which plaintiff's intestate was knocked down and killed. The complaint also charged defendants jointly with negligence in maintaining such steep grade and closely adjoining switch at such place, in not providing a switchman at the crossing, in not providing a brakeman in charge of the cars, and in that the railway company's employés were incompetent, and that they were retained in its employ with knowledge that they were accustomed to violate its rules. Held, that such acts of negligence were not joint, but that the complaint alleged a separable controversy, entitling the railway company to remove the cause to the federal courts.-McIntyre v. Southern Ry. Co. (C. C.) 131 Fed. 985.

[n] (U. S. 1904) Where, in an action for death of a passenger, plaintiff joined the railroad company, a nonresident corporation, with certain of its employés, operating the colliding trains which caused the accident, who were of the same citizenship as plaintiff, but the only negligence averred was that

of the servants in control of the trains, the corporation's liability being based wholly on the fact that the acts of the servants were within the scope of their employments, and bound the company, the complaint did not charge a joint tort, and hence the corporation was entitled to remove the cause to the federal court.-Sessions v. Southern Pac. Co. (C. C.) 134 Fed. 313.

[o] (U. S. 1906)

An action to recover damages for the negligent injury of a person while a passenger on a street car is one ex delicto, and not on the contract of carriage, and the plaintiff may join as defendants the street railroad company and an employé, where their joint negligence is alleged to have been the cause of the injury; and in such case the cause of action is not separable for the purpose of removal.-Knuth v. Butte Electric Ry. Co. (C. C.) 148 Fed. 73.

[p] (U. S. 1907) Where the petition in a joint action in a state court against a railroad company and its servant to recover for a personal injury alleges facts which show that the corporation is charged with negligence solely because of an act of its codefendant, under the rule of respondeat superior, it states a cause of action which is several and not joint, notwithstanding a general averment of joint negligence, and the cause involves a separable controversy which renders it removable by such company, the other jurisdictional facts being shown.-Atlantic Coast Line R. Co. v. Bailey (C. C.) 151 Fed. 891.

[q] (U. S. 1908) In an action for injuries to a servant, plaintiff sued defendant company, a nonresident, and B., a resident, who was plaintiff's superintendent. The corporation's liability, if any, was based on its negligence in providing a defective appliance, or because of B.'s negligence in directing plaintiff to pour iron into the mold known by him to be defective. Held, that the liability was not joint, and that the cause was removable.-Evansberg v. Insurance Stove, Range & Foundry Co. (C. C.) 168 Fed. 1001.

[r] (Ga. 1907) Where a joint suit is brought by a resident of this stateagainst a foreign corporation operating a railroad in this state, and against three of its employés who reside in this state, for an injury resulting from negligent acts, in the commission of which all the defendants participated, such suit is not removable by the corporation as a separable controversy.— Southern Ry. Co. v. Miller, 1 Ga. App. 616, 57 S. E. 1090.

[s] (Ind. 1907) Where plaintiff in a negligence action against a railroad and its employé, which action is both joint and separable, elects to make it joint, defendants cannot make it separable for the purpose of removal from a state to a federal court, although the purpose of suing defendants jointly was to prevent the removal, since the motive of a person asserting a right is immaterial.-Louisville & N. R. Co. v. Gollihur, 40 Ind. App. 480, 82 N. E.

492.

[t] (Mo. 1906) An action in a state court against a servant of a railroad and the railroad jointly, for the negligence of the servant, and where any liability of the company was under the principle of respondeat superior, the servant being a citizen of the state, and the railroad a corporation of another state, is not removable to the federal court, under Act March 3, 1887, c. 373, 24 Stat. 552, as corrected August 13, 1888, chapter 866, § 1, 25 Stat. 433 (1 U. S. Rev. St. Supp. 611 [U. S. Comp. St. 1901, p. 509]), providing that, when in any suit there shall be a controversy between citizens of different states, and which can be fully determined as between them, either one or more of the defendants may remove the suit into the federal court.-Lanning v. Chicago Great Western Ry. Co., 196 Mo. 647, 94 S. W. 491.

[u] (Tenn. 1906) Plaintiff brought suit for death of his intestate against defendant railroad company and the engineer and conductor of the train by which deceased was killed, both of whom were of the same citizenship as plaintiff. The declaration alleged negligence, consisting of a failure to warn deceased that the track where deceased was directed to work was defective, and that the operatives of the train negligently moved the same before deceased came out from between certain cars which he was engaged in coupling. It also alleged that "said negligence of the corporate defendant was done by and through its servants (to wit, the conductor and engineer), and was the joint negligence of all the defendants, and that the injuries and death suf