Morris

The defendant, a non-resident railway corporation, was sued with two of its resident employees in the Superior Court of the State of California, County of Fresno, for negligence which resulted in the 'death of the minor son of the plaintiffs. On petition, the State Court removed the case to this Court. The plaintiffs have moved to remand.

In the past when the only act charged against the resident employee was that performed by him in the course of his employment and in the performance of the duty owed by the employer to the plaintiff, courts have held that the doctrine of respondeat superior which made the employer liable for the act of the employee created' a separable controversy for which removal could be had. Stephens v. Southern Pacific, D.C.Cal.1926, 16 F.2d 288 ; Dobie on Federal Procedure, p. 379. But the later cases have questioned the doctrine. Alabama Great Southern Ry. Co. v. Thompson, 1906, 200 U.S. 206 , 26 S.Ct. 161 , 50 L.Ed. 441 , 4 Ann.Cas. 1147; Earnhart v. Turman Oil Co., D.C.Okl.1938, 23 F.Supp. 324 ; and see opinion of District Judge A. F. St.Sure in La Flower v. Merrill, D.C.Cal.1928, 28 F.2d 784 . In Pullman Co. v. Jenkins, 1939, 305 U.S. 534 , 59 S.Ct.…