Jenkins
Jenkins v. Pullman Co.
Opinion
Lead Opinion
Haney, J.
Two procedural questions and one substantive question are submitted to us, the former involving removability of an action commenced in a state court, and the latter involving the effect of an instrument signed by appellant, after commencement of the action, as to whether or not it extinguished the entire action.
Southern Pacific Company, hereinafter called the railroad, is a Kentucky Corporation. Robert L. Jenkins, a resident of California, was employed by’ it as a passenger conductor. Fred M. Dolsen, a resident of California, was employed by it as a gate tender at its passenger station in the city of Los Angeles, to examine tickets of passengers, before their entry through the gates to board trains.
The Pullman Company, hereinafter called the company, is an Illinois .corporation. IT. J. Platch, a resident of California, was employed by it as a Pullman conductor. Edward E. Myers, whose place of residence does not appear, was employed, by it as a Pullman porter.
The railroad hauls the company’s sleeping cars and equipment under an agreement between them. Under rules of the railroad, its conductor or other officer in charge shall eject disorderly passengers from its trains, and…
Dissenting Opinion
Mathews, J.
(dissenting).
This was an action against the Southern’ Pacific Company, the Pullman Company, Fred M. Dolsen, and three other defendants for damages in the sum of $50,000 for the death of Robert L. Jenkins (hereafter called decedent), an employee of the Southern Pacific Company.
The action was not brought by decedent’s personal representative. It was brought by his widow and minor child. They did not bring it under the Federal Employers’ Liability Act, 14 and could not have done so. They never had any right of action under the Federal Employers’ Liability Act. Obviously, therefore, this case did not “arise” under that act.
Plaintiffs (decedent’s widow and child) were citizens of California. The Southern Pacific Company was a citizen of Kentucky. The Pullman Company was a citizen of Illinois. The citizenship of the other defendants was not indicated. Between plaintiffs and the Pullman Company there was a separable controversy, that is to say, a controversy which was wholly between them, and which could be fully determined as between them. Therefore, the case was removable 15 and, on the Pullman Company’s petition, filed November 20, 1935, was duly and properly removed to the…