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217 U.S.

Argument for Defendant in Error.

$ 307; Cromwell v. County of Sac, 94 U. S. 352; So. Ry. Co. v. Grizzle, 124 Georgia, 735.

The suit against the Southern Railway was based upon a statutory cause of action and the suit against the other defendants was based upon a common-law right, if any right. The two separate causes of action were blended in one count and thus made a separable controversy. Helms v. N. P. Ry., 120 Fed. Rep. 389; Lavelle v. Ry. Co., 40 Minnesota, 249; Johnson v. Railroad Co., 43 Minnesota, 222; Beuttel v. Railroad Co., 26 Fed. Rep. 50; Ala. So. Ry. Co. v. Thompson, 200 U. S. 206; Gustafson v. Railway Co., 128 Fed. Rep. 85; Atlantic Coast Line v. Bailey, 151 Fed. Rep. 891; Railroad Co. v. Stepp, 151 Fed. Rep. 909; N. E. R. R. Co. v. Conroy, 175 U. S. 323; James v. Kelley, 107 Georgia, 452; Railroad Co. v. Dixon, 179 U. S. 131; West & At. R. R. Co. v. Exposition Mills, 83 Georgia, 441; Charleston & W. C. Ry. Co. v. Miller, 113 Georgia, 15; Cavanaugh v. So. Ry. Co., 120 Georgia, 67; McDormant v. Hannibal & St. Joseph R. R. Co., 87 Missouri, 286; Addecker v. Schrubbee, 45 Iowa, 315.

Eliminating from the petition all the paragraphs that refer to defendants other than the railroad company the petition still made on its face a case authorizing a recovery against the railway company and the same was therefore removable.

When the case was sued in Hall Superior Court, and removed into the Circuit Court, the cause of action as well as the case was removed and the plaintiff could not, by any act of his again bestow jurisdiction upon the state court. Kern v. Huidekoper, 103 V. S. 485; Nat. S. Co. v. Tugman, 106 U. S. 118; Gordon v. Longest, 16 Pet. 97; Goldey v. Morning Neus, 156 U. S. 523; Mclver v. F. C. & P. R. R., 110 Georgia, 223; Webb v. Sou. Cotton Oil Co., 131 Georgia, 682.

Mr. Reuben R. Arnold, with whom Mr. Reuben Arnold was on the brief, for defendant in error:

The suit was a joint one and could not be removed. Rail

Argument for Defendant in Error.

217 U.S.

way Co. v. Dickson, 179 U. S. 131; Powers v. Railroad Co., 169 U. S. 92; Railroad Co. v. Wangelin, 132 U. S. 599.

If the plaintiff elects to bring a joint action the defendant has no right to say that the action shall be severable. Railroad Co. v. Ide, 114 U. S. 52; and this is so even though the plaintiff has misconceived his cause of action and has no right to prosecute the same jointly. Railroad Co. v. Thompson, 200 U. S. 206; Railway Co. v. Bohon, 200 U. S. 221.

But this action is well brought jointly against the defendants. Georgia having a statute which makes a railroad responsible to one employé for the negligence of a fellow-servant, the negligent servant is liable to his fellow-servants for injuries inflicted by such negligent servant. See Morrison v. Railroad Co., 74 Pac. Rep. (Wash.) 1064; Howe v. Railroad Co., 30 Washington, 569; Abel v. Railroad Co., 73 S. C. 173; Warrax v. Railroad Co., 72 Fed. Rep. 637; Railroad Co. v. Dickson, 179 U. S. 131.

The point in the brief for plaintiffs in error that the acts of negligence charged against the employé defendants were acts of non-feasance merely, and that for such acts only the master is liable,-is untenable in negligence casesRailway Co. v. Grizzle, 124 Georgia, 735; Osborn v. Morgan, 130 Massachusetts, 102; Bell v. Josselyn, 3 Gray, 309.

It was for the state court to decide whether it would permit persons to be joined who were guilty of misseasance or nonfeasance. No Federal question is raised in this particular.

After dismissal in United States court, case can be brought over again in state court.

Upon the voluntary dismissal of a srul United States court, the jurisdiction of the Unutrd Sets Cou?"; is ended; it no longer has control over the cause of action, as its control over the cause of action only lasted whil the case was actually pending. When the case is dismissed the jurisdiction of the United States court is wholly divested an.i the plaintiff is just as free to bring his suit over again as he was when it was originally filed in the state court. Se 102.72 v. Southern Bell

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Co., 55 S. E. Rep. 765; Gossman v. Jarvis, 100 Fed. Rep. 146; Texas Cotton Products Co. v. Starnes, 128 Fed. Rep. 183, affirmed, 133 Fed. Rep. 1022; McIver v. Florida &c. Ry. Co., 110 Georgia, 223; C., C. C. & St. L. R. R. Co. v. Reese, 93 Ill. App. 467; Cleveland, C. C. & St. L. R. R. Co. v. Lawler, 94 Ill. App. 36; Foley v. Cudahy Packing Co., 119 Iowa, 246, Rodman v. Missouri P. R. Co., 65 Kansas, 645; Swift & Co. v. Hoblawetz, 10 Kan. App. 48; Adams Exp. Co. v. Schofield, 111 Kentucky, 832; Stephenson v. IU. C. R. Co., 117 Kentucky, 855; DeWitt v. Chesapeake & O. R. Co., 25 Ky. L. Rep. 2019; Nipp v. Chesapeake & 0. R. Co., 25 Ky. L. Rep. 2335; Dana & Co. v. Blackburn, 28 Ky. L. Rep. 695; Krueger v. Chicago & A. R. Co., 84 Mo. App. 358; Fox v. Jacob Dold Packing Co., 96 Mo. App. 173; Fleming v. Southern R. Co., 128 N. C. 80; Hooper v. Atlanta, K. & N. R. Co., 106 Tennessee, 28; Illinois Central R. Co. v. Bentz, 108 Tennessee, 670; Teras & P. R. Co. v. Maddox, 26 Tex. Civ. App. 297. See also Bush v. Kentucky, 107 U. S. 110.

The cases cited by plaintiff in error only go to the extent of holding that when a defendant removes a case from a state court to a Federal court, so long as that case is pending in the Federal court, the jurisdiction of the state court is completely ousted. See McIver v. Railroad Co., 110 Georgia, 223, distinguished.

The only case sustaining contentions of plaintiff in error, is Railroad Co. v. Fulton, 59 Ohio St. 575, which was based upon a mistaken interpretation of the case of Cor v. Railroad Co., 68 Georgia, 446. See Mciver Case, 110 Georgia, 223; and the Young Case, 55 S. E. Rep. 765; note to 7 L. R. A. (N. S.) 501.

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MR. JUSTICE Day delivered the opinion of the court.

The defendant in error, plaintiff below, brought suit in the City Court of Hall County, Georgia, against the Southern Railway Company, a corporation of Virginia, and certain individual citizens of Georgia, te recover damages for personal in

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juries received by him while in the employ of the railroad company as an engineer. A recovery in the court of original jurisdiction was affirmed in the Court of Appeals of Georgia (59 S. E. Rep. 1115), and the case is brought here to review certain Federal questions presented by the record. These are, first, that the state court erred in refusing to remove the case to the United States Circuit Court upon the petition of the plaintiff in error; second, as it appeared that the case had once been removed to the Federal court and was dismissed by the plaintiff, the state court should have held that the right to further prosecute in that court was lost, and the jurisdiction completely and finally transferred to the Federal court.

In order to determine these questions it is necessary to state how the case arose. Originally this suit was brought against the Southern Railway Company alone, to recover damages for injuries charged to have been inflicted, because the train upon which the plaintiff was engineer was permitted to run from the main track through an open switch on to a siding where another train was standing, when, by reason of the rules and regulations of the company in the circumstances set forth, plaintiff's train had the right of way upon the track, and, because the switch was turned the wrong way, plaintiff's train was thrown into the siding upon which the other train was standing, and in order to avoid more serious injury plaintiff jumped from his engine, and was greatly injured.

The first suit, being against the Southern Railway Company alone, was removed to the United States Circuit Court, the transcript of record was duly filed, and the company answered. Thereafter the plaintiff voluntarily dismissed the case, and later began the present case against the Southern Railway Company for the same injury and joined Cox, Voil and Hurst as parties defendant. These parties were, respectively, the conductor of the train with which plaintiff's train collided, the engineer and front brakeman of said train. The negligence charged was that the brakeman negligently failed to turn the switch back to the main line after his train went into the sid

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ing; that Cox, the conductor, was in control and management of the train, and under the duty of seeing that the switch was turned to the main line; and that Voil, the engineer, after he got his engine into the siding with the exercise of ordinary care should have known that the switch was turned wrong, and yet failed to take any steps to report the situation or to have it remedied. It was further alleged that the individual de fendants, in causing the switch to be unlocked and turned from the main line, were guilty of negligence, which was the negligence of the railroad company, inasmuch as they represented the company in the operation of the train which collided with the plaintiff's train. It is also alleged that the individual defendants should have flagged the plaintiff's train if for any reason the switch remained turned to the side track.

The petition for removal contained no charge that the attempt to join the defendants was for the purpose of fraudulently avoiding the jurisdiction of the United States court, or with a view to defeat a removal thereto. The case here pre sented is one in which the record discloses there was an attempt to join, in good faith, the railway company and the individual defendants as for a joint liability in tort.

Under the practice in Georgia the case went to the Court of Appeals of that State on the question of the right to remove the case to the Federal court. The decision of the Court of Appeals upon that question is reported in 1 Ga. App. 616; 57 S. E. Rep. 1020. In that case the court dealt with the right under the law of Georgia to join the individual defendants with the railroad company, and held that the objections to joinder were untenable, and that there was no separable 'controversy, either at common law or under the statutes of Georgia. In an opinion by the chief judge it was held that the acts of negligence charged against the individual defendants involved both acts of omission and commission, and were not merely matters of non-feasance, for which the agents would not be jointly liable with the principal. The court further held that the objection that the liability of the railroad company

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