CHICAGO, ROCK ISLAND, & PACIFIC RAILWAY COMPANY and Martin A. Barrett, Plffs. in Err., v. ALBERT H. SCHWYHART, Harry L. Reed, and Frank Novak.

This is an action for personal injuries, brought by Schwyhart against the railway company and those of its servants to whose immediate negligence the injuries were alleged to have been due. There was a verdict and judgment against the company and the defendant Barrett, but at the proper time a petition had been filed by the railway company for the removal of the action to the circuit court of the United States, and it now contends that all subsequent proceedings in the state courts were void. 145 Mo. App. 332, 130 S. W. 388.

The declaration alleged that the plaintiff was employed by the company as hostler under Barrett as foreman; that it was his duty under Barrett's direction to uncouple the air brake and signal hose from between the ends of the cars on a specified train; that Barrett ordered him to do so, and that while he was between the cars, owing to their proceeding in an unusual manner that is stated, he was crushed; and further, that Barrett negligently ordered him into the dangerous situation without giving him warning of the danger, and by his order and presence assured plaintiff that the work could be proceeded with safely when, by the exercise of ordinary care on Barrett's part, the injury could have been avoided. After the petition for removal had been overruled the declaration was amended by inserting as to Barrett, 'although he well knew of plaintiff's danger and the unusual way by which the said Pullman car was to be switched.'

The defendants other than the railway were residents of Missouri, and the petition for removal charged that they were joined for the sole and fraudulent purpose of preventing a removal. The grounds stated for the charge of fraudulent joinder were that the declaration disclosed no cause of action against those defendants, that the company and they were not jointly liable, and that they were persons of little or no property, while the company was fully able to pay. It will be sufficient to consider these grounds with reference to Barrett alone, the party that ultimately was held.

The joint liability of the defendants under the declaration as amended is a matter of state law, and upon that we shall not attempt to go behind the decision of the highest court of the state before which the question could come. Southern R. Co. v. Miller, 217 U. S. 209, 215, 216, 54 L. ed. 732, 735, 736, 30 Sup. Ct. Rep. 450. That court might hold that the declaration averred the plaintiff to have been led by Barrett into a trap that was set and snapped by the company, the latter being also liable for Barrett's share in the deed. Again, the motive of the plaintiff, taken by itself, does not affect the right to remove. If there is a joint liability, he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right. Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 427, 55 L. ed. 521, 527, 31 Sup. Ct. Rep. 460; Illinois C. R. Co. v. Sheegog, 215 U. S. 308, 316, 54 L. ed. 208, 211, 30 Sup. Ct. Rep. 101. Hence the fact that the company is rich and Barrett poor does not affect the case.

The remaining justification for the charge of fraudulent intent is that no cause of action was stated against Barrett. That again is a question of state law, and that the plaintiff had such a cause of action in fact must be taken now to be established. The suggestion that mere nonfeasance is alleged is shown to be unfounded by the statement that we have made. It is true that the declaration was amended after the petition to remove had been denied, but the amendment, if not unnecessary, merely made the original cause of action more precise. On the question of removal we have not to consider more than whether there was a real intention to get a joint judgment, and whether there was a colorable ground for it shown as the record stood when the removal was denied. We are not to decide whether a flaw could be picked in the declaration on special demurrer. As the record stood, Barrett was alleged negligently to have ordered the plaintiff into a dangerous place, and by his conduct to have assured the plaintiff of safety, when, if Barrett had used ordinary care, the plaintiff need not have been hurt. To add that Barrett knew the specific source of the danger is merely to make plainer what evidently was meant before.

Judgment affirmed.