
    ATCHISON, T. & S. F. RY. CO. et al. v. FRANCOM et al.
    No. 9632.
    Circuit Court of Appeals, Ninth Circuit.
    March 17, 1941.
    As Amended on Denial of Rehearing April 10, 1941.
    Robert Brennan, Leo E. Sievert, and H. K. Lockwood, all of Los Angeles, Cal., for appellants.
    Delamere F. McCloskey, Russell D. Hardy, and Marion P. Betty, all” of Los Angeles, Cal., for appellees.
    Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.
   DENMAN, Circuit Judge.

This is an appeal from a judgment against appellants, defendants below, in favor of appellees, plaintiffs below, adjudging that plaintiffs “have and recover of and from the defendants, The Atchison, Topeka and Santa Fe Railway Company, a corporation, Hugh A. Donahue and E. F. Abril, the sum of Thirty-five Thousand Dollars ($35,000.00), together with costs herein taxed at $69.60.”

The complaint by the parties now appellees, from which the judgment arose, alleges the following tortious conduct of the appellants and damages proximately caused thereby:

“ * * * That at said time, the above named defendants were backing and operating extra engine 3880 and five cars in a southerly direction on said fifth spur or siding, and negligently, and carelessly caused said end or fifth car to crash into and against the north or right side of said truck as it was attempting to cross over said crossing, -capsizing the same. That as a result thereof the said Joseph Edgar Fran-com was crushed in and under said truck causing him to suffer fatal injuries, from which injuries he died on July 1, 1935.

“That said fatal injuries suffered by said Joseph Edgar Francom resulting in his death, as aforesaid, were caused directly and proximately by the negligence and careless acts and omissions of the said defendants ; that by reason of the premises and by reason of the loss of services, support, society, comfort and companionship of the said Joseph Edgar Francom, said plaintiffs have sustained general damages in the sum of $50,000.00.”

Appellees filed this complaint in the. Superior Court of the State of California in and for the County of Los Angeles. On the petition of the Atchison, Topeka and Santa Fe Railway Company, a Kansas corporation, the cause was removed by order of that court to the United States District Court for the Southern District of California, Central Division. A motion to remand was made by the plaintiffs on the ground that plaintiffs were citizens and residents of the State of California and the defendants Hugh A. Donahue and E. F. Abril also were citizens and residents of the same state, and that no separable controversy was alleged as to the defendant railway. The motion to remand was denied by the district judge, who retired before trial. His successor felt bound by the decision.

It is admitted here that the citizenship of the parties is as described above. The tort charged, upon which the damages and judgment were prayed, is a joint negligence and there is no severable cause of action alleged against the Atchison, Topeka and Santa Fe Railway Company. Hence there was no jurisdiction in the district court below to entertain the action. Kataoka v. May Department Stores Co., 9 Cir., 115 F.2d 521, certiorari denied March 10, 1941, 61 S.Ct. 739, 85 L.Ed.-. The motion to remand should have been granted.

The judgment is reversed and the order denying the motion of the appellees, plaintiffs below, to remand the cause to the Superior Court of the State of California in and for the County of Los Angeles is set aside.

The cause is remanded to the district court with instructions to remand it to the Superior Court of the State of California in and for the County of Los Angeles, unless the appellees, plaintiffs below, dismiss the cause as to the defendants below who are citizens of California. In the event of such dismissal, the appellees, plaintiffs below, shall be entitled to a new trial. Cf. Dollar S. S. Line v. Merz, 9 Cir., 68 F.2d 594, 597.

Reversed.  