200 U. S. Argument for Alabama Great Southern Railway Co.

injury. Its sole responsibility is because in law it is surety for the conduct of these servants. On that account alone it is sued. Such responsibility does not make it proper to join them with the company in an action. The liability of the individual defendants is because they did the thing that brought about the injury. Such liability is entirely separate from that of the company. The questions propounded state the case of a principal neither present at, nor directing nor concurring in, the act which produces the injury.

This liability on the part of the master is enforceable only in trespass on the case, while on the other hand, the servant is liable in trespass vi et armis. 4 Harv. L. Rev. 355; Holmes on Common Law, 9, 15, 20; Pollock on Torts, 6th ed., 75; C. & O. Ry. v. Dixon, 179 U. S. 131, distinguished; and see Winston's Adm'r v. I. C. R. Co., 23 Ky. L. R. 1285; Elliott v. Felton, 119 Fed. Rep. 270; Mulchey v. Methodist Society, 125 Massachusetts, 487; Campbell v. Sugar Co., 62 Maine, 552; Warax v. C. N. O. & T. P. Ry., 72 Fed. Rep. 637; Sherrod v. L. & N. W. R. R. Co., 4 Exch. *580; Pomeroy on Code Remedies, 4th ed., § 208; Bliss on Code Pleadings, § 83; 17 Am. & Eng. Ency. of Law, 1st ed., 602; Parsons v. Winchell, 5 Cush. 592; Hewitt v. Swift, 3 Allen, 420; Bailey v. Bussing, 37 Connecticut, 349; Sellick v. Hall, 47 Connecticut, 260; Page v. Parker, 40 N. H. 47; Clark v. Frye, 8 Ohio St. 377; Bennett v. Fifield, 13 R. I. 139; Cole v. Lippett, 22 R. I. 31; Trowbridge v. Forepaugh, 14 Minnesota, 133; Brinkerhoff v. Brown, 6 Johns. Ch. Cas. 154.

For decisions of various Circuit Courts and Courts of Appeals, in which this question has been elaborately and ably discussed, and in which it has been held that in cases like the present the action is not joint and that master and servant cannot be sued jointly, see cases supra and Beuttel v. Chicago, M. & St. P. Ry. Co., 26 Fed. Rep. 50; Fergason v. Chicago, M. & St. P. Ry. Co., 63 Fed. Rep. 177; Hartshorn v. A., T. & S. F. R. R., 77 Fed. Rep. 9; Doremus v. Root, 94 Fed. Rep. 760; Helms v. Northern Pac. Ry., 120 Fed. Rep.

Argument for Alabama Great Southern Railway Co. 200 U. S.

389; Davenport v. Southern Ry., 124 Fed. Rep. 983; Gustafson v. Chi., R. I. & P. Ry. Co., 128 Fed. Rep. 87, 88; Shaffer v. Union Brick Co., 128 Fed. Rep. 99; McIntyre v. Southern Ry. Co., 131 Fed. Rep. 985.

The argument thus far has proceeded upon the supposition of a liability on the part of the two individual defendants. But in the case represented by the questions certified no liability is shown on the part of the conductor and engineer of the train and there is no reason why they or either of them should be made parties defendant. Lane v. Cotton, 12 Modern, 472, 488; Wharton on Agency, § 536; Cameron v. Reynolds, 1 Cowp. 403; Williams v. Cranston, 2 Starkie, *82; 1 Blackstone's Comm., *431; 1 Shearman & Redfield on Negligence, 5th ed., 243; 20 Am. & Eng. Ency. of Law, 2d ed., 52; Story on Agency, 9th ed., § 308; Denny v. Manhattan Co., 2 Denio, 115; Colvin v. Holbrook, 2 N. Y. 129; Murray v. Usher, 117 N. Y. 546; Van Antwerp v. Linton, 35 N. Y. Supp. 318.

The question has been thoroughly discussed and the same conclusion arrived at, in Feltus v. Swan, 62 Mississippi, 415; Steinhauser v. Spraul, 127 Missouri, 541; Delaney v. Rochereau & Co., 34 La. Ann. 1128; Henshaw v. Noble, 7 Ohio St. 226, 231; Kelly v. Chicago &c. Ry. Co., 122 Fed. Rep. 289.

One of the tests by which to determine whether parties may be sued on a joint tort is whether the same proof would make a case against each. That test fails where the master's liability depends only upon his relation of master; because, to hold the servant liable, it would be necessary only to prove the doing of the act; but in order to make the master liable it is necessary to prove, in addition thereto, the agency of the servant and also that the injurious act was within the scope of such agency.

Where there is no liability on the part of the servant as, we think, is the case here, his joinder in an action with the master should not prevent a removal and defeat the object of the removal statute.

The construction of 82, act of March 3, 1887, August 13,

1888, presents a Federal and not a state question. Accordingly, the judgment of Federal courts and not of state courts must be the criterion. This act confers a right of removal in certain specified cases, and the state legislatures have no power to alter, amend, or abolish this Federal right, directly, or by indirection. This statute confers the right of removal, and was passed for that express purpose, upon a non-resident citizen finding himself involved in a controversy with a citizen of the State of the forum when the controversy is one determinable between them alone. This provision takes no account of who may be parties to the action in which the controversy be found, nor of what may be the rules of practice, whether common law or statutory, of the State in which the action may be, pending. Removal Cases, 100 U. S. 457, 468; Blake v. McKim, 103 U. S. 336; Evers v. Watson, 156 U. S. 527; Barney v. Latham, 103 U. S. 205.

The statute is meant to operate in all the States, and, nevertheless, the practice in any of those States may differ from that in any other State. There is no intimation in the statute that the separableness of the controversy, or its determinability between the citizens is to be determined by the practice, or the statutes of any State. Federal jurisdiction cannot be abridged or modified by any state statute. Hyde v. Stone, 20 How. 173; Smyth v. Ames, 169 U. S. 466; Brow v. Wabash, 164 U. S. 271. Plymouth Co. v. Amador, 118 U. S. 264, distinguished.

Mr. E. S. Daniels, Mr. J. V. Williams and Mr. John O. Benson for Thompson:

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 held that they will follow the practice of the state court. Connell v. Utica Railroad Co., 13 VOL. CC-14

Argument for Thompson.

200 U. S.

Fed. Rep. 241; Railway Co. v. Dixon, 179 U. S. 131; Charman v. Railway Co., 105 Fed. Rep. 449; Southern Ry. Co. v. Carson, 194 U. S. 136; Swain v. Tennessee Copper Co., 111 Tennessee, 433; Jones v. Ducktown Co., 109 Tennessee, 375, 386.

Under the facts alleged in the declaration in this case, plaintiffs' right of action is based not only upon the common law, but a violation of a statute of Tennessee. Shannon's Code, § 1574, par. 4. Railroad Co. v. Pratt, 85 Tennessee, 9, distinguished.

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 in reasoning, largely preponderate in favor of the right of joinder. Most, if not all, the Federal cases which hold a contrary doctrine seem to follow Warax v. Railway Co., 72 Fed. Rep. 637, which has been criticised and is error; see Riser v. Southern Ry. Co., 116 Fed. Rep. 215, and Federal cases supra.

There are numerous state decisions to the effect that joint liability exists under the facts of this case. Wright v. Compton, 53 Indiana, 337; Schumper v. Southern Ry. Co., 65 S. Car. 355; Wright v. Wilcox, 19 Wend. 343; Phelps v. Waite, 30 N. Y. 78; C. N. & O. Ry. Co. v. Cook, 67 S. W. Rep. 383; Cook v. Winston, 55 L. R. A. 603; McHugh v. Nor. Pacific, 72 Pac. Rep. 450; Howe v. Railroad Co., 70 Pac. Rep. 100; Schaefer v. Osterbrink, 67 Wisconsin, 495; Newman v. Fowler, 37 N. J. L. 89; 1 Shearman & R. on Neg., 5th ed., § 248; Cooley on Torts, 1st ed., 142; Wood on Master & Servant, 2d ed., § 325; 1 Estee's Pleading, § 1834; 15 Ency. Pl. & Pr. 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 Co., 114 Massachusetts, 149; Story on Partnership, § 220; Betts v. Gibbons, 2 Ad. & El. 57; Wooley v. Batte, 2 C. & P. 417; Bailey v. Bussing, 28 Connecticut, 455; 7 Am. & Eng. Ency. of Law, 364.

When the removal is based upon the allegation of a separ

able controversy, the whole suit goes to the Federal court. Barney v. Latham, 103 U. S. 205.

The removal statute provides that before the right of removal exists, "there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them. Geer v. Mathieson Alkali Works, 190 U. S. 428, 432.

At the same term at which this certificate was made, the same court held that the negligent acts of an individual defendant, under similar circumstances to those in the present case, constituted actionable negligence against him, and that no separate controversy existed. American Bridge Co. v. Hunt, 130 Fed. Rep. 302.

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 $2,000, exclusive of interest and costs, existed between the petitioner and the plaintiff, as to whom diversity of citizenship existed, which could be tried out without the presence of either of the indididual co-defendants of petitioner.