In the above case a declaration was filed in the state court claiming damages for injuries claimed to have been inflicted through the joint negligence of the defendants. One of these defendants is a foreign corporation, and the other defendant is a resident and citizen of this state. Petitions for removal of cases No. 522 and No. 643 were filed by the foreign corporation on the ground that the cause of action was separable and the citizenship diverse. The order of removal was entered in case No. 522, and denied in case No. 643. A motion to remand case No. 522 is made. In case No. 643, having the record filed in this court, the nonresident corporation filed its bill to restrain the plaintiffs from further proceeding in the state court.
[1] The main question in these cases is: Can the corporation employer and the motorman in charge of the street car, the negligent running of which it is claimed caused the injury, be joined in the action as joint tort-feasors? There is no question that joint tort-feasors, as a general rule, may be sued jointly, and a recovery had against one or more or all. But the corporation defendant claims that section 1389 of the Compiled Fa.ws of Florida makes the joinder of the corporation and the motorman improper; that the right of action against the corporation is in case, and against the motorman is in trespass, and not in the same rights—the motorman being responsible for the result of his negligence under a common-law liability, and the corporation under the rule of respondeat superior under the statutes of the state of Florida.' Section 1389 reads:
“Causes of action, of whatever kind, by and against the same parties in the same rights, may be joined in the same suit, except,” etc.
Does this statute make it improper to sue the master and servant jointly for a tort? I think not. The cases in the Supreme Court of Florida, referred to by counsel for the defendant, were claims by the plaintiff in a different right and capacity. Not so in this case; the-right of the plaintiffs against each of the defendants is the same—to be remunerated for the injury. The liability of the master and servant to make such remuneration existed before the passage of section 3148 of the Compiled Faws, and that section has been construed by the Supreme Court of Florida to be a rule oí evidence. Negligence is still the basis of the action. The fact that the defense of the two defendants is different, that contributory negligence would excuse one and not the other, that presumption of negligence arises against one on proof of injury, and not the other, does not to my mind make the rights different, but does make different defenses, and does not make a separable case removable from a state court to the United States court.
*720 [2] The test applied by the Supreme Court of the United States in many decisions seems to me: Does the declaration state a good case of joint liability under the state laws? If it does, the case is not separable.
[3] Now, in case No. 643, petition f.or removal, bond, etc., were duly filed, and upon hearing the state court denied the petition and is proceeding with the case. The defendant corporation thereupon procured and had filed in this court the transcript, and thereupon filed its bill seeking to enjoin the plaintiffs from further proceeding in the state court. The petition for removal sets out the declaration on its face, and shows that the cause of action is not joint, etc. In C. & O. Ry. Co. v. Cockrell, Adm’r, 232 U. S. 154, 34 Sup. Ct. 278, 281, 58 L. Ed. 544, Mr. Justice Van Devanter says:
“In this case, had the petition contained a sufficient showing of a fraudulent joinder, accompanied as it was by a proper bond, the state court would have been in duty bound to give effect to the petition and surrender jurisdiction, leaving any issue of fact arising upon the petition to the decision of the federal court. * * * And, had the state court refused to give effect to the petition, it and the bond being sufficient, the railway company might have obtained a certified transcript of the record, * * * and, upon filing the transcript in the federal court, might have invoked the authority of the latter to.protect its jurisdiction by enjoining the plaintiff from taking further proceedings in the state court, unless the cause should be remanded.”
There is nD question of fact in this case. The petition for removal makes it a question of law whether the defendants were improperly joined as joint tort-feasors. The question of the sufficiency of the petition in this respect was what, I suppose, the state court decided in this case denying the petition. It -was because the petition was insufficient in the charge of fraudulent joinder that the court sustained the jurisdiction of the state court in C. & O. Ry. Co. v. Cockrell, supra.
According to my view as above expressed, the petition in this case was insufficient to show a separable cause of action, and the injunction will therefore be denied, and the motion to remand No. 522 will be granted.