#### MATILDA HOUGH, admrx., v. SOUTHERN RAILWAY COMPANY et al.

(Filed 27 May, 1907).

1. Railroads — Torts — Separable Controversy — Removal of Cause. At common law and under Revisal, sec. 469, an action in tort against several defendants is joint or several according 'to the declaration of the complaint, and the plaintiff’s election determines the character of the tort, whether joint or several; the complaint in a suit against a foreign railroad company and its resident train dispatcher and telegraph operators, alleging that the plaintiff’s intestate ivas killed by the negligence of the defendants, caused by the collision and wreck of two trains owned and operated by the railroad company, does not state a separable controversy and cannot be removed to the Pederal Court on the ground of diverse citizenship.

2. Same — Fraudulent Joinder of Parties — Record.—The mere allegation in the lietition of the foreign defendant that the joinder of the resident with the foreign defendant was a device of the plaintiff for the fraudulent purpose of defeating the defendant’s right of removal is insufficient. To remove the causé, the defendant must not only allege but prove that there was a wrongful joinder of defendants for the purpose of preventing the removal, and the question of the insolvency of the resident defendants cannot alone determine the right of the plaintiff to join them in the action.

3. Same — Record.—The question of separable controversy is alone determined by the record at the time of filing the petition.

MotioN for removal of cause to the Federal Court, beard by Coolc, J., at the February Term, 1907, of the Superior Court of BuNcombe County.

This action was brought to recover damages for the death of plaintiffs intestate, 'which is alleged to have been caused by the negligence of the defendants. The intestate was killed in a wreck resulting from the collision of two trains which were moving in opposite directions on the road of the railway company. The plaintiff alleges in her complaint that at the time of the collision the defendant W. C. Hudson *693was train dispatcher, the defendant L. D. Elack was telegraph operator and station agent at Swannanoa, and the defendant O. T. Hallman was telegraph operator and station agent at Black Mountain, all of them being'in the employ of their co-defendant, the Southern Railway Company, and that the plaintiff’s intestate was at the same time the conductor of one of the colliding trains which was proceeding from Asheville to Salisbury, and in the proper discharge of his duties as such. The railroad at the time of the collision was being operated by the defendant corporation. The plaintiff further alleges, in section 4 of her complaint, as follows:

“On 18 February, 1906, the said TV. R. Hough, the plaintiff’s intestate, was killed by the negligence of the defendants ; the said negligent killing of plaintiff’s intestate was in and caused by the collision and wreck of two trains owned and operated by the defendant railway company between Swannanoa station and the town of Black Mountain; and the said collision, wreck and killing was caused by the negligence of the defendants and their negligent failure to perform and discharge the duties which they owed to plaintiff’s intestate. By the negligent killing of the plaintiff’s intestate, as herein set forth, the plaintiff has been damaged in the sum of fifty thousand dollars,”.for which sum she prayed judgment.

The defendants, the Southern Railway Company and TV. C. Hudson, jointly answered the complaint and admitted the truth of all its allegations except those contained in the fourth section thereof 'and except, also, the allegation that the plaintiff, at the time he was killed, was in the-proper discharge of his duty as conductor of the train from Asheville to Salisbury, and these were denied. The qualification of the plaintiff as administratrix of the intestate is also alleged and admitted. The defendants specially averred in their answer, as a defense to the action, that the intestate’s death *694was caused by bis own negligence, in that be disobeyed a written order delivered to bim wben be left Asbeville and by which be was notified that the train proceeding from Salisbury to Asbeville Avas running tAvo hours and forty minutes late. That it then became bis duty under the known rules and regulations of the company to take the siding at Swan-nanoa station with bis train and wait for the other train to pass. Instead of doing so, be negligently undertook to run bis train beyond Swannanoa to Black Mountain and met the other train between the two stations, where the collision occurred.

The complaint was filed on 11 December, 1906, and the answer on 23 February, 1901. Between the two dates — that is, on 21 February, 1901 — the defendant, the Southern Rail-Avay Company, filed a petition in the State Court for the removal of the cause to the United States Court, alleging diverse citizenship between the railway company and the plaintiff and making the necessary formal allegation as to the amount in controversy. It is then alleged in the petition that the petitioner operates one of the largest railway systems in this country and is amply solvent and able to pay any judgment the plaintiff may recover in this action, and that W. C. Hudson and the other defendants are insolvent and unable to pay any amount. The petitioner further alleges as folloAvs: “That it is advised, informed and verily believes that the plaintiff Avrongfully and unlawfully joined with the petitioner the said W. C. Hudson, L. D. Flack and 0. T„ Hallman as sham defendants for the fraudulent purpose of preventing the removal of this suit by your petitioner, the real defendant, to the Federal Court; that the said defendants W. 0. Hudson, L. D. Flack and O. T. Hallman were in no wise connected with or responsible for the collision in which the plaintiff’s intestate lost his life; that in no view of this suit are the said W. 0. Hudson, L. D. Flack and 0. T. *695Hallman more than, mere nominal or formal parties joined with your petitioner for no other purpose on the part of the plaintiff than to deprive your petitioner of its legal right of removal herein. That no substantial relief could possibly be obtained against the said defendants W. C. Hudson, L. D. Elack and O. T. Hallman, and that they are neither proper nor necessary parties to a complete and final determination of this action. If said W. 0. Hudson, L. H. Elack and O. T. Hallman are proper and necessary defendants in this suit, which is expressly denied, the said controversy is of a separable nature and is a separable controversy, as appears from the complaint filed herein.”

The petitioner, the Southern Railway Company, duly executed, tendered and filed a proper bond with the petition, which was approved by the Judge, who ordered that the action be removed according to the prayer of the petitioner. To this order the plaintiff excepted and appealed to this Court.

Craig, Martin & Winston for plaintiff.

Moore & Rollins for defendant.

Walker, J.,

after stating the case: This is an action in tort for causing the death of the plaintiff’s intestate by negligence. The defendant, the Southern Railway Company, was the master and its co-defendants servants of that corporation, and it is alleged that as such they owed a duty to- the intestate which they disregarded and neglected, and that their joint omission of that duty proximately resulted in his death, whereas if they had, while 'acting in co-operation and in a careful manner, as they should have done, in the discharge of the duty, each bestowing upon it that degree of care required of and due from him or it, the injury and death would not have occurred. This is the substance of the cause of action, which, being for a tort, may be made joint by uniting *696all the tort feasors as defendants in one action, or several by suing each in a separate action. The plaintiff, or party aggrieved by the wrong, may make it joint or several, at his election, and it is not open to the wrongdoer to complain of the election so made or to dictate how he shall make his choice. If the injured party chooses to sue the wrongdoers jointly he thereby declares that the- tort shall be joint, and the law so regards it, without listening to or even hearing from the wrongdoer. And so it is when he sues them separately. His election finally determines what shall be the character of the tort, whether joint or several. This principle has controlled the courts in deciding upon applications for the removal of causes from the State to the Federal courts whenever it becomes necessary to inquire whether a separable controversy is presented as between the plaintiff and the nonresident defendant, or opposite party of diverse citizenship. It has been well expressed by Mr. Justice Gray in Torrence v. Shedd, 144 U. S., 527: “As this Court has repeatedly affirmed, not only in cases of joint contracts, but in actions for torts, which might have been brought against all or against any one of the defendants, separate answers by the several defendants sued on joint causes of action may present different' questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit whatever the plaintiff declares it to be in his pleading.” Citing Railroad v. Ide, 114 U. S., 52; Pirie v. Tvedt, 115 U. S., 41; Sloane v. Anderson, 117 U. S., 275; Little v. Giles, 118 U. S., 596; Thorne Wire Hedge Co. v. Fuller, 122 U. S., 535.

*697A case much like tliis; and certainly sufficiently like it in principle to control its decision, is Pirie v. Tvedt, 115 U. S., 41, in which the plaintiff sued the defendants for malicious prosecution, and one of the latter sought to remove the,case as to him to the Federal Court.-- In respect to his right to do so the Court said: “There is here, according to the complaint, but a single cause of action, and that is the alleged malicious prosecution of the plaintiffs by all the defendants acting in concert. The cause of action is several as well as joint, and the plaintiffs might have sued each defendant separately or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this the defendants are not permitted to object. The fact that a judgment in the action may be rendered against a part of the defendants only does not divide a joint action in tort into separate parts, any more than it does a joint action on contract.” National Docks Railway Co. v. Pennsylvania Railroad Co., 52 N. J. Eq., 58; W. U. Telegraph. Co. v. Griffith, 104 Ga., 56. The principle thus stated was held, in Railroad v. Ide, 114 U. S., 52, to apply where railway companies made joint contracts for the transportation of goods. With reference to the provision of the removal -acts that “there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them,” the Court further said in that case, speaking of the count in the declaration on the joint contract: “On the one side of the controversy upon that cause of action is the plaintiff, and on the other all the defendants.” So, where an employee sued his employer for injuries in tort and joined a cause of action in contract against his co-defendant, an accident insurance company, upon a policy issued to indemnify the employer against loss by injuries to his employees, it was held that the insurance company had no separable controversy with the plaintiff so as to authorize a removal of the case as to it. Moore v. Iron and Steel *698 Co., 89 Fed., 73. See, also, Insurance Co. v. Carrier, 91 Term., 537; Fidelity Co. v. Huntington, 117 U. S., 280; Putnam v. Ingraham, 114 U. S., 57. Moon, in bis work on the .Removal of Causes, sec. 142, thus summarizes the result of the decisions: “There are many causes of action which are, in their nature, joint and several. A plaintiff may sue all the parties liable, or sue any one or more of them, at his election. Where the plaintiff has a right under the law to sue defendants jointly, the defendants cannot obtain an advantage from the fact that he also has a right to sue them separately. If a plaintiff sues two or more persons jointly in such a case, the fact that the plaintiff might have brought several actions against each defendant instead of one action against them all does not make the suit embrace separable controversies. This rule applies to actions upon joint and several contracts. It applies as well to actions in tort, which are, in their nature, joint and several. Where a plaintiff brings a suit, the declaration in form charging a joint tort against two or more defendants, it is not sufficient to make the controversy between plaintiff and one defendant separable that the complaint does not state facts sufficient to constitute a cause of action against him. The sufficiency of the complaint as to the various defendants is a matter for the determination of the State Court. The fact that there may be, under the local practice, a judgment rendered for one defendant and against another upon the trial does not affect the question whether a case contains a separable controversy.” But the case of Railway Co. v. Dixon, 179 U. S., 131, is precisely like our case in its facts, with but one slight and immaterial exception. There the plaintiff’s intestate was killed while crossing the track of the defendant corporation at the junction of that and another track, and the action was brought against the railway company and its employees who were operating the train to recover damages for their joint *699negligence, wbicb was alleged to have. caused tbe intestate’s' death. That case and ours are therefore practically identical and governed by the same principle. It was there held, following prior decisions, that in an action of tort the cause of action is whatever the plaintiff declares it to be in his pleading, and matters of defense do not necessarily have the effect of dividing or disintegrating it into separate controversies, so as to be availed of as ground of removal by a non-resident defendant, and that, when concurrent negligence is charged, the controversy is joint and not separable; and as the complaint in the case, when reasonably construed, alleged that hind of negligence, the State Court did not err in retaining jurisdiction when passing upon an application for removal, as no separable controversy as to the applicant, within the meaning of the act of Congress, was presented. It is' too obviously true to require any argument to demonstrate it that the mere fact of the employees in the casé just cited, being engineer and fireman, and in this suit the train dispatcher, cannot differentiate the two cases. It was further said, in Hallway v. Dixon, that “in respect of the removal of actions of tort on the ground of a separable controversy, certain matters must be regarded as not open to dispute,” and the rule we have stated is then held to be among them. The two cases are further alike, in that a fraudulent joinder of defendants for the purpose and with the motive of preventing a removal to the Federal Court is alleged in the petitions for removal in both cases, and in the Dixon case hold insufficient without proof. The case of Powers v. Railway, 169 U. S., 92, is cited by the Court to sustain its position in the Dixon case, and there the subject is fully discussed and the conclusion reached that an action in tort is joint or several, as the pleader may choose to make it, unless the defendants were sued jointly as a device and with a fraudulent purpose of defeating the right of removal, when in *700fact no cause of action existed against the resident, and the assertion of his liability to the plaintiff is a more sham or pretense. But this must be alleged and proved by the defendant in his petition for the removal of the cause. Railroad v. Wangalin, 132 U. S., 599. See, also, Sloane v. Anderson, 117 U. S., 275; Little v. Giles, 118 U. S., 596; Connell v. Smiley, 156 U. S., 335; Railway v. Marlin, 178 U. S., 245; Wilson v. Oswego Township, 151 U. S., 56; Bellaire v. Railway Co., 146 U. S., 117; Life Association v. Farmer, 77 Fed., 929; Thurber v. Miller, 67 Fed., 371. There was no proof of fraud in this case. The defendant, who petitioned for a removal, simply .controverts the allegations of the complaint, for that is what the petition means, and all that it means. Its vituperative expressions prove nothing. Calling an act fraudulent does not make it so. It must be alleged and proved in what the fraud consists. "We have practically nothing before us but- the joinder and the bare allegations of fraud. That will not do.

Another principle equally well settled in the law of removal is that the question of separable controversy must be determined by the state of the record in the State Court at the time of filing the petition, independently of the allegations in-the latter or in the affidavit of the petitioner, unless he both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal of the cause. Railroad Co. v. Wangalin, 132 U. S., 599; Railway v. Dixon, 179 U. S., 131; Wilson v. Oswego Township, 151 U. S., 56; M. C. P. and S. Association v. Insurance Co., 151 U. S., 368; Moon on Removals, sec. 141. The complaint in this case states a cause of action for a joint tort, and, although the plaintiff might have elected to sue the defendants separately, they also are liable to him jointly and may be held answerable for their wrong in one and the same action. This was so at the common law. Railway v. Dixon, *701 179 U. S., 137; Solomon v. Bates, 118 N. C., 311; Alpha Mills v. Engine Co., 116 N. C., 797; Cook v. Smith, 119 N. C., 350; 15 Enc. of Pl. and Pr., 560, and note; Staton v. Railroad, at this terra. They can certainly be joined as de-féndants under The Code of this State. Clark’s Code (3 Ed.), sec. 267 (2) and (3), and notes; Revisal, sec. 469. This being so, where two defendants are sued together and the plaintiff demands judgment against both, the Court cannot assume that either one of them is the real party against whom the plaintiff intends to prosecute his action and that the other has been joined merely for the fraudulent purpose of depriving the real defendant of his right of removal. In order to sustain the jurisdiction of the Federal,Court on that ground, it is necessary for the removing defendant to allege and prove such fraudulent purpose. Doremus v. Root, 94 Fed. Rep., 760. It was said by the Court in Railroad v. Wangalin, supra, citing and quoting from Plymouth Co. v. Amador Co., 118 U. S., 264: “It is possible, also, that the company may be guilty and the other defendants not guilty; but the plaintiff in its complaint says they are all guilty, and that presents the cause of action to be tried. Each party defends for himself, but until his defense is made out the case stands against him, and the rights of all must be governed accordingly. TJnder these circumstances, the aver-ments, in the petition that the defendants were wrongfully made (parties) to avoid a removal can be of no avail in the Circuit Court upon a motion to remand until they are proven; and that, so far as the .present record discloses, was not attempted. The affirmative of this issue was on the petitioning defendant. The corporation was the moving party and was bound to make out its case.” And in Little v. Giles, 118 U. S., at p. 600, the Court says: “Giles (the petitioner) could not, by merely making contrary averments in his petition for removal and setting up a case inconsistent with the *702allegations of the bill, segregate himself from the other defendants, and thus entitle himself to remove the case into the United States Court. This matter has been fully considered in numerous cases.” Railroad Co. v. Ide, 114 U. S., 52; Farmington v. Pillsbury, 114 U. S., 138; Pirie v. Tvedt, 115 U. S., 41; Crump v. Thurber, 115 U. S., 56; Starin v. New York, 115 U. S., 248; Sloane v. Anderson, 117 U. S., 278; Insurance Co. v. Huntington, 117 U. S., 280; Core v. Vinal, 117 U. S., 347; Mining Co. v. Canal Co., 118 U. S., 264.

It is not material that, as alleged in the petition for removal, W. C. Hudson was joined as a party defendant for the single purpose of preventing a removal of the case by the Southern Railway Company to the Eederal Court, nor is it a matter of any moment what the plaintiff’s motive was for bringing á joint action against the defendants, unless they were wrongfully and illegally joined. Tobacco Co. v. Tobacco Co., at this term (57 S. E., 5). When a party is in the lawful assertion of a right in bringing an action, either as to form or substance, the law disregards his motive as unimportant and having no practical bearing upon the question of his right to proceed in the prosecution of the suit as he has elected to do. Black’s Dillon on Removal, sec. 146. A plaintiff cannot well be right and wrong at the same time in proceeding by action to recover damages against those who have injured him. Testing the right of removal by the case as made in the present record, as it stood at the time of the application, and even including the petition as a part thereof, we see no ground upon which it can be urged that the defendant, the Southern Railway Company, has entitled itself to haA^e the case transferred and tried in the Eederal Court. The record proper clearly does not disclose any such right, and the petitioner has neither sufficiently alleged nor attempted to prove that the defendants were improperly joined *703in the action. Railway v. Dixon, 47 S. W., 615 (affirmed in same case, 179 U. S., 131). There must of necessity be such allegation and proof. Offner v. Railroad, 148 Fed., 201.

The questions we have discussed have recently been fully considered, and the principles upon which we rest our decision of this case sustained in Railway v. Thompson, 200 U. S., 206. That case disposes of all matters raised on this record adversely to the petitioner’s contention. The latter makes-the broad and sweeping charge in the petition that its co-defendants were fraudulently made parties for the purpose of depriving it of the right to have the cause removed, but it assigns no good or valid reason why this is so. No proof is offered' and no fact found indicating that to have been the purpose of the plaintiff. The only ground of attack stated is that the co-defendants are insolvent and for that reason the plaintiff had no right to join them. Mere insolvency of a defendant cannot be permitted alone to determine the right of a plaintiff to join him in the action if he is liable for the tort. Insolvency does not destroy the remedy, but can only affect the ability of the plaintiff, who has a good cause of action and reduces it to judgment, to obtain the fruits of his recovery. A cause of action unquestionably valid may be prosecuted in perfect good faith against an insolvent person. The test is not the amount that may eventually be realized upon a recovery, but the nature of the cause of action itself, as being one good or not good in law against the co-defendant alleged to have been wrongfully united with the petitioner, and the good faith of the plaintiff in making the joinder. As said by Chief Justice Fuller in Railway Co. v. Dixon, 179 U. S., at p. 135: “The question to be determined is whether the Court of Appeals erred in affirming the action of the (State) Circuit Court in denying the application to remove. And that depends on whether a separable contro*704versy appeared on the face of plaintiffs petition or declaration. If the liability of defendants, as set forth in that pleading, was joint, and the cause of action entire, then the controversy was not separable as matter of law, and plaintiffs purpose in joining Chalkey and Sidles was immaterial. The petition for removal did not charge fraud in that regard or set up any facts and circumstances indicative thereof, and plaintiff’s motive in the performance of a lawful act was not open to inquiry.” There are no facts showing any fraud alleged in this case. Allegation, itself insufficient and unsupported by proof, it has been shown, cannot avail the petitioner. Tobacco Co. v. Tobacco Co., at this term (55 S. E., 5).

While the averments of the complaint are not as specific or definite as good pleading requires that they should be, they are good under our law, in the absence of any motion to make them more definite and certain, or of a demurrer to the form of the pleading, and the complaint, as it is, sufficiently states a cause of action for a joint tort against all of the defendants. By not moving for a more definite statement, or by not demurring, the railway company waived any defect in the pleading. Revisal, secs. 496 and 498; Wood v. Kincaid, at this term. The defendant corporation did not ask that the complaint be made more specific in respect to the allegations of negligence, nor has it demurred; but, on the contrary, it has filed a joint answer with Hudson, denying the negligence as to both defendants. This denial in the answer, and the one to the same effect in the petition, cannot affect the question as to the separability of the controversy. Staton v. Railway, at this term (56 S. E., 794). In the case last cited and in Tobacco Co. v. Tobacco Co., supra, some of the questions involved in this case are fully and learnedly discussed by Justice Connor.

There is nothing decided in Wicker v. National E. and S. Co., 27 Sup. Ct. Rep., 184, that militates against the views *705herein expressed. ITncontradicted evidence was considered in that case, without objection, in the Federal Court on a motion to remand, 'and the fact was actually found that the co-defendant of the petitioner was in no way liable to the plaintiff, having had no connection whatever with the alleged negligence, and it was further found as a fact that the plaintiff had not joined the co-defendant of the petitioner with the latter in good faith, but for the sole purpose of preventing a removal of the suit. It is thus distinguishable from the other cases we have cited in support of our ruling.

Our conclusion is that the Court below erred in ordering a removal of the case to the United States Circuit Court: Its order is therefore reversed and set aside, with directions to enter an order denying the prayer of the petition.

Reversed.