Action in state court against two defendants jointly, in which plaintiff states a case of joint liability arising out of the concurrent negligence of both defendants, does not present a separable controversy as affecting right of removal to federal court under Judicial Code, § 28 (Comp. St. § 1010), though plaintiff might have sued defendants separately.
Allegations of complaint in action against two defendants jointly are decisive against separable nature of controversy, in absence of showing that one defendant was fraudulently joined to prevent removal.
Petition in employee's action against nonresident employer and resident coemployee, jointly alleging that plaintiff was injured by being run into by coemployee's truck after his own had been stopped by de bris obstructing passageway, through concurrent negligence of both defendants, held not to state a separable controversy as to the employer, as affecting its right of removal, under Judicial Code, § 28 (Comp. St. § 1010).
Messrs. James J. O'Donohoe, Mark D. Eagleton, and Harry S. Rooks, all of St. Louis, Mo., for plaintiff in error.
Messrs. Robert A. Holland, Jr., and Jacob M. Lashly, both of St. Louis, Mo., for defendants in error.
Mr. Justice SANFORD delivered the opinion of the Court.