This writ of error is sued out to review a judgment in a personal-injury case because a petition to remove the case to the circuit court of the United States is said to have been erroneously denied.

The plaintiff, Albert M. Dowell, was a laborer in the employ of the railroad company, his work being to remove cinders and other debris from the tracks and yards of the company in the town of Liberal, Kansas. He was a resident and citizen of that state. The railroad company was a corporation of the states of Illinois and Iowa, but not of Kansas. The plaintiff, while engaged in his proper work, was run down by an engine, upon which one Ed. Johnson was the engineer in control, sustaining serious and permanent injuries.

To recover damages for his hurt, Dowell sued the railroad company and Johnson as jointly and severally liable. Johnson was alleged to be, and was in fact, a citizen of the state of Kansas. The railroad company in due time filed its petition and bond, to remove the action of the plaintiff against it to the circuit court of the United States, as presenting a separable controversy between the plaintiff and the corporation, which could be tried out and determined without the presence of its codefendant, Johnson. It also averred that Johnson was a man of no means, who had been joined as a defendant 'for the sole and fraudulent purpose of defeating and preventing' the removal of the case by the nonresident railroad company to the circuit court of the United States. The application was denied and the suit was tried before a jury upon the issues made, which found for the plaintiff, against both of the defendants, in the sum of $15,000, for which sum a judgment was entered. This judgment was later affirmed by the supreme court of the state. 83 Kan. 562, 112 Pac. 136. The only error assigned in this court is that the Kansas court erred in denying the application for removal.

Shortly stated, the plaintiff's grounds for recovery, as averred in his petition, were these:

a. That the engine which ran over him was old, worn, and defective. 'That it leaked steam into its cylinder and would not stand when left alone, but would move without the interposition of any human or outside agency. That the appliances and machinery of the said engine for starting and stopping the same were so defective that it would start and stop without reference to said machinery, and would not respond to the operation of said machinery.' That it was without sufficient or safe driving-wheel brakes, all of which was averred to be well known to the defendants, and not known to the plaintiff.

b. That the defendant Johnson, in charge and control of the said engine at the time of its collision with plaintiff, 'was incompetent, unskilled, and unfit to discharge his duties as an engineer at the time he was employed, . . . as said railway company well knew, and that he has been unskilled, unfit, and incompetent, as the railway company well knew, but all of which the plaintiff was at all times ignorant.'

c. 'That the injury to plaintiff was the direct and proximate result of the unfitness and incompetency of the defendant, Ed. Johnson, and of the negligence and carelessness of said Ed. Johnson in carelessly, recklessly, and needlessly running said engine upon and against the said plaintiff, and of the careless failure of said Ed. Johnson in neglecting to use proper precaution to observe and avoid running upon and injuring the said plaintiff at the time and place in question, and in the carelessness of the defendant railway company in employing the said Ed. Johnson as engineer, and in retaining him and allowing him to act as engineer at the time and place in question, and in the carelessness of the defendant railway company in knowingly retaining and using said defective engine at said time and place, and in carelessly failing to take proper precaution to prevent injury to said plaintiff at said time and place while engaged in the discharge of his duty as employee of said defendant railway company; and each and every act of omission and commission of the defendants and of each of them as above were the joint, proximate, and concurrent cause of said imjury, and each of said acts of the said defendants materially, concurrently, and jointly contributed to the injuries of said plaintiff, and plaintiff says that he was without fault or negligence in the premises.'

The claim of a right to have the cause removed to the circuit court of the United States was that the requisite diversity of citizenship existed as between the plaintiff and the petitioning railroad company, and that there existed as between them a separable controversy.

But if the plaintiff alleges that the concurrent negligence of the railroad company and its employee, Johnson, was the cause of his injury, he has a right to join them in one action. If he elects to do so, it supplies no ground for removal because he might have sued them separately. Louisville & N. R. Co. v. Wangelin, 132 U. S. 599, 601, 33 L. ed. 474, 475, 10 Sup. Ct. Rep. 203; Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 50 L. ed. 441, 26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147.

The petition of the plaintiff below was in substance that the defective character of the engine, the unfitness and incompetency of Johnson, the engineer controlling it, and his negligence and carelessness in needlessly running the engine over him without the exercise of proper care and caution, 'concurrently and jointly contributed to the injuries of said plaintiff,' who was at the time in the exercise of due care.

But it is said that some of the matters charged against Johnson consisted in acts of nonfeasance, and that an employer is not liable to a third person for conduct of that character.

Whether liability to a third person against a master may result from the servant's neglect of some duty owing to the employer alone may be debatable. But we need not consider that question, since the plaintiff's declaration averred positive acts of negligence on the part of Johnson toward the plaintiff; namely, that while engaged in the company's service in the movement of the engine, he did not exercise that decree of care and skill which he was bound to exercise toward another servant engaged upon the tracks in the company's work. This was an act of misfeasance, for which he would be primarily liable, notwithstanding his contract relation to the employer, and the liability of the latter for his negligent act under the Kansas statute abolishing the common-law rule in respect of fellow servants.

The state court held that the allegations of the petition stated a case of concurring negligence of master and servant for which they might be jointly sued. That court, also, aside from any positive acts of negligence, such as the retention of an incompetent servant in the control and management of an unmanageable engine, must be regarded as necessarily holding that under the law and practice of the state, it was admissible to jointly sue the company with the servant for whose negligent act it was liable. Southern R. Co. v. Miller, 217 U. S. 209, 54 L. ed. 732, 30 Sup. Ct. Rep. 450; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 50 L. ed. 441, 26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147.

Whether there was a joint liability or not was a question to be determined upon the averments of the plaintiff's statement of his cause of action, and is a question for the state court to decide. Alabama G. S. R. Co. v. Thompson, supra; Illinois C. R. Co. v. Sheegog, 215 U. S. 308, 54 L. ed. 208, 30 Sup. Ct. Rep. 101.

That the liability of the railroad company was statutory in so far as the common-law fellow-servant rule had been abolished by statute, and the liability of Johnson dependent upon common law, was held by the Kansas court not to preclude a joinder. 'It is enough,' said the court below, 'if the concurrent acts of negligence of each contributed to the injury inflicted upon the plaintiff.' Southern R. Co. v. Miller, supra.

But the petition for removal averred that the sole reason in joining Johnson was for the fraudulent purpose of defeating the right of the railroad company to remove the action. It is further insisted that this averment presented a question of fact which could be tried only in the circuit court of the United States.

Allegations of fact, if controverted, arising upon such a petition, are triable only in the court to which it is sought to be removed. Illinois C. R. Co. v. Sheegog, supra. But if the petition was insufficient upon its face, the state court might for that reason deny it. It is well settled that the mere averment that a particular defendant had been joined for the fraudulent purpose of defeating the right of removal which would otherwise exist is not in law sufficient. If the plaintiff had a right to elect whether he would join two joint tort feasors, or sue them separately, his motive in joining them is not fraudulent, unless the mere epithet 'fraudulent' is backed up by some other charge or statement of fact. Ibid.

Neither did the allegation that the defendant Johnson was a man of small means, and the responsibility of the railroad company unquestioned, serve to show any actual fraudulent purpose in joining him as a defendant. If the plaintiff had a cause of action which was joint, and had elected to sue both tort feasors in one action, his motive in doing so is of no importance. Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 184, 57 L. ed. —, 33 Sup. Ct. Rep. 250; Deere, W. & Co. v. Chicago, M. & St. P. R. Co. 85 Fed. 876; Welch v. Cincinnati, N. O. & T. P. R. Co. 177 Fed. 760.

There was no error in denying the petition to remove.

Judgment affirmed.