76().
94 FEDERAU REPORTER.
(:)
DOREMUS
v.ROO'f et
a1.
(Circuit Court, D. WashingtQn, S. D., l\Iay 22', 1809.) 1. MASTER AND SERVANT-AcTION FOU PERSONAL INJUny--JotNDtnt OF DEFENDANTS. " " " ,
Although a master and his servaht. through whose culpable negligence another is injured, may each be liable 'for sueh illjnry, their obligations rest upQudifferent grouJ:!.ds,and they cannot be held jointly liable.
2.
REMOVAL OF CAusis-AcTION SEVlllRABLE CONTROVERSIES.
dF
TORT AGAINS'l'
SEVEUAL DEFENDANTS'-
An action to recover unliquidated damages for a personal Injury causecl by negligence, thougll the negligence complained of may constitute a breach of' contract on' the part of defendant, is an action delicto" governecl by the law of torts; and the plaintiff may join several as defendants, and, if the sustains his complaint against one only, may recover against that oile and dismiss as against the others. In such case, defenclants, though, sued as though jointly liable, and although the complaint shows affirmatively that they are not jointly Untie, cannot recast the issues tendered by the complaint, and divide the cause so as to present separate controversies as to each.1
3.
SAME--'-'-PLEADING.
When the right to ,remove a ca.use depend:; upon the nature of the coutroversy and the questions to be litigated, the comlJlalnt alone is to be considered for the purpose of ascertaining. the nature oJ the controversy aucl the questions involved; and, although tile defendants mny by their plead· ings introduce new matter and raise additional questions, they cannot so change the case as to make it cognizable in a federal court, If it was not so wbencommenced. ;
4,
SAME-JOINDER OF DEFENDANTS TO PREVEN'r llEMOV Ai,.
Where two defendants are sued together, and plaintiff demands judgment against both, the court cannot' assume that either one of them is the real lJarty against whom the plaint11f intends' to prosecute his action, and that, the other has been joined merely for the frandulent purpose of. deprlvingthereal defendant of his right of removal. In order to sustain the jurisdiction of the federal court on that It is necessary for the removing defendant to allege and prove such fraudulent purpose.
Action 'at law to recover damages for a personal injury, commenced in the superior court for the stateo! Washington, and removed to the United States circuit court by the defendant the Oregon Railroad & Navigation Company on the ground of a separable controversy. Heard on motion to remand. I, · M..O. Reed, for plaintiff. W" W.Clltton, for defendant Oregon'R. R. & Na.v. Co. HANFORD, District Judge. .The plaintiff slles to recover damages for a personal injury suffer,ed by ,him while employed in the operation of the Qregon Railroad '& Navigation Compans's railroad, through alleged The complirintcharges the defendants jointly with, and wrougfufcontluct produci;ng the injury, but it is app3.rent from the recital, in the complaint thatthe two defendants could llot have been joint actors, so as to become jointly liable, as in casel{ where several persons, actively participate in the commission of a trespass. If the deferid!Jllt nllOt is guilty 'of any wrong, 1 For separable controversy as ground £or remo\'al, see note to Robbins v. Ellenbogen,18 C. C. A. 86.
DO nEMl'S V. ROOT.
761
it is his personal, culnable neglect of a duty which, by reason of his position in the sen'ice of his co-d(ofendant, he was obligated to perform per8onaJl)'. 'rhe employer is not guilty of an)' wrong. and cannot be held liable to the plaintiff, otherwise than b)' application of the principle that a servant in the transaction of the emplo.rc1"s business is to be regardrd as the employer's instrument, and his torts and misfeasances which are connected with his employer's business are imputed to the employer. Although the employer and ]\is negligent servant, whose culpable misconduct causes an injury, lllay each be liable to respond in damages, their obligations rest upon different grounds. Therefore they cannot be jointly liable. The attempt of the Oregon Railroad & Kavigation OOlUp3ny to l'cmove this ease from the state court in which it was commenced, into this court, iE based upon the assumed ground that there is a separable controversy; and it lS argued that because the complaint shows affirmatively that the defendants cannot be jointly liable to the plaintiff, and as each defendant may pursue an entirely separate and independent courFle in defense of the action, there is neceSEarily a separable controversy, and said defendant. being a citizen of another state and nonresident of this 8tatc, may claim the .right of removal. This sounds plausible, but I think that the deciEion of thp supreme court in the case of Powers v. Railwa)' Co., 169 U. S. 92-103, 18 Sup. Ct. 264, la)'s .down a rule which constrains me to hold otherwise. See Creagh v. Society, 88 Fed. 1. As the identical question in this case has been presented to this court a number of times) and been argued with gl'cat persistence, and as this court has at different times made contrary rulings, I will endeavor in opinion to state exactly the controlIing propositions and rules which I understand to be now established by the decisions of the federal courts. They are as follows: 1. An action to recover unliquidated damages for a personal injUI'y cansed by negligence, although the negligence complained of amounts to a breach of contract on the part of the defendant, belongs to the class of cases denominated "actions ex delicto." The tort is the ground of action, and the law of torts must govern the case. In such a case the plaintiff may join several as defendants, and if upon the trial he fails to sustain his complaint against all, but does sustain it against one of them, he may dismiss as to the others, and recover against the one found to be liable. Railway Co. v. Laird, 164 U. S. 393-403, 17 Sup. Ct. 120. 2. In such an action against several defendants sued as if the)' were jointly liable to the plaintiff, they must all meet the plaintiff upon the ground chOEen by him; and, even though the complaint shows affirmatively that they have not acted jointly in such a manner as to incur a joint liability, still they cannot divide the cause so as to present a separate controversy as to the separate acts of each. 'L'he defendants are not permitted to recast the issues tendered by the complaint, so as to make several lawsuits in place of the one case which the plaintiff has elected to prosecute against them all jointly. Little v. Giles, 118 U. S. 596--608, 7 Sup. 01. 32. 3. When the right to remove a case from a state court into a United
762
,court depends upon theniture of the controversy and fh'e: quel1l'tio!ls' litigated) thctcomplairit alone is to be for' the 'pui'pO$e of ascertaiIiing"the ,nature of the and fi,nding out questions are'involved. Although .defendants by their pleadin(58 may introduce new'matter and raise additional questions, they cannot so change the case as 'to make it cognizable in a federal'court,'if;ltwas not so attheoutset. Walker v. O>llins,167 U. s'5't:-60, 17 Sup. Ct. 738. ' , , " ' , ., 4. Where two defendants are' and the plaintiff demands judgmentagainst both, the ClJUlrt cannot assume that either one of them is the real party 'ag:'rhist whom the plaintiff intend,;, to wage his action, and that the bth'erMs been joined' as a co-defendantnieretv for 'the p'ntppSe of th.e real defendant of his right to remove the case ,into a United Stlltes circuit ',In ,order to sustain the of the fe4eral court on it ,is necesS,ary 'thE! removing defendant to and prove such fraudulent purpose oli tHe part of ,the plamflff. 'yai'itx Railway Co'.; 72 Fed. 'Accordin,g to these principles, 'this ease must be rem..anded. It is .Ih·obtdHe.tlmt the plaintiff will liot: ,obtain a "erdict against both in, the state court, aPrdthathe may wis,h to dismiss as to one them, and endeavor to a judgmeht other. When that attempt' is made, if the, defendant Root shall be dismissed froni"tHe case on the plaintit+"s motion,. the bart? the right 'or removing the case, into ,this court on the ground of diversity of eitizenbregon Rflilroad. & Navigation Comship will' be eliminated, and panY' :wiptJ;len 'the right to file a and bond for removal,' ij" before hLkingany other s.tep it elects to.do Bo. Powers v. RailwAy 'Co., '169 U. S. 92-103,' 18 Sup. Ct. 264. ,In the present situation of the case, the court is, without jurisdiction, and the motion to:,remaild must be granted. , " : ' , ':' I. " ..'
, !
TIMES PUB. CO. v. CARLISLE. JOURNAl. 00. v. SAME. CO. v. SAME.
WORLD PUB.
(Circuit Court of Appeals, Eighth Circuit. No,s. 1,137-1,131:1. 1. LIBEL-'--Ac'fIONS-D.uUGES.
May ,8, lSl.ltl.)
' A good name is more estimable than tangible property, and as valuable, and, the l!\'w gives corresponding redress for its injury; 2. SAME.....EvIDENCE-PRESUMPTION FROM GOOD REPUTATION' ()F PI,AINTIFF. is presl\med to be innocent of crime until' he is proved to be guilty; but there is a stronger presumption that a lUan of good reputation is not guilty of a criminal charge, and he Who ,attacks the reputation of 'such a man cannot escape the ,effect of this presumption.
S. SAME-NECESinTY OF PROVING ACTUAJ,]<tALICE.
'Dhe unprivileged publication of matter that is false and libelous per se warrants the recovery of compensatory' damages, without allegation or proof of malice in its ordinary acceptation; that is to f:ay, ill will, bad motive, hatred, or intent to injure.