REED, District Judge
(after stating the facts). The merits of the controversy may be considered only for the purpose of ascertaining the real nature of the alleged cause or causes of action of the plaintiff against the several defendants, and whether or not there has been a fraudulent joinder of parties defendant with the Great Northern Company for the purpose of defeating the jurisdiction of this court. Alabama Great Southern Railway Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441; Wecker v. National Enameling Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. —.
The petition of plaintiff, as amended in the state court, is very general in its allegations. It is clearly vulnerable to a motion for more specific statement, and it is urged in behalf of the Great Northern Company that its allegations are thus indefinitely and generally made to conceal the real facts which caused the death of Mr. McGuire and the destruction of his property, and to make an apparent case upon paper against all of the defendants jointly, for the fraudulent purpose of preventing the Great Northern Company from removing the cause to this court.
The petition alleges, generally, and it is the contention of the plaintiff, that there was a joint undertaking of-the two companies to furnish the deceased with a suitable car in which to ship his property and carry him from Ayrshire, in Palo Alto county, this state, to McCanna, N. D., and that both companies are liable for the failure to perform this undertaking; that defendant Ziehlke acted as agent of both companies in procuring a car for McGuire, and did procure for him a safe and fit car for such purpose, but wrongfully diverted it to another shipper and furnished a defective and unfit car of the Minneapolis Company in lieu thereof to McGuire, and for so doing he is also liable with the two companies for their alleged failure to carry deceased and [438] .his property in safety to their destination; and that all of the defendants are therefore jointly and severally liable to the plaintiff. But the diversion of the first car to another shipper cannot be said to be the direct or immediate cause of the burning of the car that was furnished to McGuire, and no right of'action for the burning of the car can rightly be predicated upon such diversion, conceding it to be wrongful, against any of the defendants. The petition does not state any facts, aside from its legal conclusions, from which it can be inferred that there was a joint undertaking of the two companies to furnish a car and carry deceased or his property therein to McCanna, and the testimony wholly fails to show any such undertaking. It is undisputed upon the testimony that the Great Northern Company had no line of railroad at Ayrshire, or at any other place in Palo Alto county, and no office or agency in that county; that Ziehlke was not its agent for any purpose in the matter of procuring this car, or in making this shipment ; that its first knowledge of the shipment was when it was delivered to it at the Minnesota Transfer, to be carried over its own line to McCanna; that the Minneapolis Company alone, through Ziehlke, as . its agent, furnished the car to McGuire; and that that company carried him and his property therein over its own line in safety to the Minnesota Transfer, where it was delivered to the Great Northern Company. The action of the Minneapolis Company in thus furnishing the car, and carrying the deceased and his property therein over its own line, was an undertaking upon its part distinct and separate from that of the Great Northern Company to carry them over its line. The two companies did not act together in any way, either as partners or as joint carriers; but each received and carried the shipment over its own line under its separate written contract with the deceased therefor, and neither company was the agent, or liable for the acts, of the other in so doing. True, the destination of the car was McCanna, N. D., a station upon the line of the Great Northern Company, and beyond that of the Minneapolis Company; but that of itself does not show a joint undertaking of the two companies to carry the shipment to that place. Myrick v. Michigan Central Ry. Co., 107 U. S. 102, 1 Sup. Ct. 425, 27 L. Ed. 325; Pennsylvania Ry. Co. v. Jones, 155 U. S, 333, 15 Sup. Ct. 136, 39 L. Ed. 176; Peterson v. Railway Co., 80 Iowa, 92, 45 N. W. 573; Root v. Great Western Ry. Co., 45 N. Y. 527; Ortt v. Railway Co., 36 Minn. 398, 31 N. W. 519.
In Myrick v. Michigan Central Railway Company, above, it is said:
“A railroad company is a carrier of goods for tlie public, and, as such, is bound to carry safely whatever goods are intrusted to it for transportation, within the course of its business, to the end of its route, and there deposit them in a suitable place for their owners or consignees. If the road of the company connects with other roads, and goods are received for transportation beyond the termination of its own line, there is superadded to its duty as a common carrier that of a forwarder by the connecting line; that is, to deliver safely the goods to such line — -the next carrier on the route beyond. This forwarding duty arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company receiving the shipment, there must be a special agreement for it. This is the doctrine of this court, although a different rulé óf liability is adopted in England and in some of the states. As was said in Railroad Company v. Manufacturing Company:
[439] “ ‘It Is unfortunate for the interest of commerce that there is any diversity of opinion on such a subject, especially in this country; but the rule that holds the carrier only liable to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction.’ 16 Wall. 318, 324.”
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REED, District Judge
(after stating the facts). The merits of the controversy may be considered only for the purpose of ascertaining the real nature of the alleged cause or causes of action of the plaintiff against the several defendants, and whether or not there has been a fraudulent joinder of parties defendant with the Great Northern Company for the purpose of defeating the jurisdiction of this court. Alabama Great Southern Railway Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441; Wecker v. National Enameling Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. —.
The petition of plaintiff, as amended in the state court, is very general in its allegations. It is clearly vulnerable to a motion for more specific statement, and it is urged in behalf of the Great Northern Company that its allegations are thus indefinitely and generally made to conceal the real facts which caused the death of Mr. McGuire and the destruction of his property, and to make an apparent case upon paper against all of the defendants jointly, for the fraudulent purpose of preventing the Great Northern Company from removing the cause to this court.
The petition alleges, generally, and it is the contention of the plaintiff, that there was a joint undertaking of-the two companies to furnish the deceased with a suitable car in which to ship his property and carry him from Ayrshire, in Palo Alto county, this state, to McCanna, N. D., and that both companies are liable for the failure to perform this undertaking; that defendant Ziehlke acted as agent of both companies in procuring a car for McGuire, and did procure for him a safe and fit car for such purpose, but wrongfully diverted it to another shipper and furnished a defective and unfit car of the Minneapolis Company in lieu thereof to McGuire, and for so doing he is also liable with the two companies for their alleged failure to carry deceased and [438] .his property in safety to their destination; and that all of the defendants are therefore jointly and severally liable to the plaintiff. But the diversion of the first car to another shipper cannot be said to be the direct or immediate cause of the burning of the car that was furnished to McGuire, and no right of'action for the burning of the car can rightly be predicated upon such diversion, conceding it to be wrongful, against any of the defendants. The petition does not state any facts, aside from its legal conclusions, from which it can be inferred that there was a joint undertaking of the two companies to furnish a car and carry deceased or his property therein to McCanna, and the testimony wholly fails to show any such undertaking. It is undisputed upon the testimony that the Great Northern Company had no line of railroad at Ayrshire, or at any other place in Palo Alto county, and no office or agency in that county; that Ziehlke was not its agent for any purpose in the matter of procuring this car, or in making this shipment ; that its first knowledge of the shipment was when it was delivered to it at the Minnesota Transfer, to be carried over its own line to McCanna; that the Minneapolis Company alone, through Ziehlke, as . its agent, furnished the car to McGuire; and that that company carried him and his property therein over its own line in safety to the Minnesota Transfer, where it was delivered to the Great Northern Company. The action of the Minneapolis Company in thus furnishing the car, and carrying the deceased and his property therein over its own line, was an undertaking upon its part distinct and separate from that of the Great Northern Company to carry them over its line. The two companies did not act together in any way, either as partners or as joint carriers; but each received and carried the shipment over its own line under its separate written contract with the deceased therefor, and neither company was the agent, or liable for the acts, of the other in so doing. True, the destination of the car was McCanna, N. D., a station upon the line of the Great Northern Company, and beyond that of the Minneapolis Company; but that of itself does not show a joint undertaking of the two companies to carry the shipment to that place. Myrick v. Michigan Central Ry. Co., 107 U. S. 102, 1 Sup. Ct. 425, 27 L. Ed. 325; Pennsylvania Ry. Co. v. Jones, 155 U. S, 333, 15 Sup. Ct. 136, 39 L. Ed. 176; Peterson v. Railway Co., 80 Iowa, 92, 45 N. W. 573; Root v. Great Western Ry. Co., 45 N. Y. 527; Ortt v. Railway Co., 36 Minn. 398, 31 N. W. 519.
In Myrick v. Michigan Central Railway Company, above, it is said:
“A railroad company is a carrier of goods for tlie public, and, as such, is bound to carry safely whatever goods are intrusted to it for transportation, within the course of its business, to the end of its route, and there deposit them in a suitable place for their owners or consignees. If the road of the company connects with other roads, and goods are received for transportation beyond the termination of its own line, there is superadded to its duty as a common carrier that of a forwarder by the connecting line; that is, to deliver safely the goods to such line — -the next carrier on the route beyond. This forwarding duty arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company receiving the shipment, there must be a special agreement for it. This is the doctrine of this court, although a different rulé óf liability is adopted in England and in some of the states. As was said in Railroad Company v. Manufacturing Company:
[439] “ ‘It Is unfortunate for the interest of commerce that there is any diversity of opinion on such a subject, especially in this country; but the rule that holds the carrier only liable to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction.’ 16 Wall. 318, 324.”
The separate contracts in writing of the two companies with the deceased, to carry him and his property over their respective lines only, are substantially the same, are each signed by the deceased, and were accepted by him for his own passage over each of the roads, and the plaintiff cannot, in the absence of fraud or mistake in procuring the contracts from the deceased, neither of which is alleged, be permitted to say that the deceased did not know their contents or understand their meaning. Insurance Company v. Railroad Co., 104 U. S. 146-155, 26 L. Ed. 679; Mulligan v. Illinois Central Ry. Co., 36 Iowa, 181, 14 Am. Rep. 514. The contracts, therefore, conclusively establish that the undertaking of each of the companies with the deceased to carry him and his property was several, and that the Minneapolis Company limited its liability for injuries in carrying them to such as might occur upon its own line. This it could lawfully do. Insurance Co. v. Railroad Co., 104 U. S. 146-154, 26 L. Ed. 679; Myrick v. Michigan Central Ry. Co., 107 U. S. 102-108, 1 Sup. Ct. 425, 27 L. Ed. 325; Southern Pacific Co. v. Interstate Commerce Com., 200 U. S. 536— 554, 26 Sup. Ct. 330, 50 L. Ed. 585; Mulligan v. Illinois Central Ry. Co., 36 Iowa, 181, 14 Am. Rep. 514; Peterson v. Railway Co., 80 Iowa, 92, 45 N. W. 573; Ortt v. Railway Co., 36 Minn. 398, 31 N. W. 519.
There is an entire absence of any evidence that there was any undertaking, oral or written, by the Minneapolis Company, to carry the deceased beyond its own line, or that the Great Northern Company is in any way responsible for any act of Ziehlke, or the Minneapolis Company in furnishing the car to McGuire. These facts were fully known to plaintiff and her counsel before the suit was commenced, and the conclusion is unavoidable that the allegations of the joint undertaking of the two companies, and of their joint negligence in handling the car upon the line of the Great Northern Company, are wholly without support in the testimony, and that such allegations were made only for the purpose of preventing the Great Northern Company from exercising its right of removal of the cause from the state court.
It is true that the Supreme Court holds that when a plaintiff in good faith prosecutes his suit as upon a joint cause of action, and a removal is sought alone upon the allegations of the plaintiff’s petition, the cause of action as therein stated is the test of removability, and if that is joint in character, and there is no showing of want of good faith on the part of the plaintiff in stating his cause of action, the question of proper joinder is not to be tried in the removal proceedings, and the case must be held to be that which the plaintiff states in setting forth his cause of action. But this rule has no application where it is alleged and shown by the nonresident defendant that the plaintiff has purposely stated a fictitious cause of action against him and another jointly, to prevent a removal of the cause to the federal court. In such cases the duty is strictly enjoined upon the Circuit Courts of protecting the [440] right of removal to one having such right, as well as to deny the removal when the right to do so does not exist. Alabama Great Southern Co. v. Thompson, above.
In Wecker v. National Enameling Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. —, it is said:
“While the plaintiff, in good faith, may proceed; in the state courts upon a cause of action which he alleges to be joint, it is equally true that the federal courts should not sanction devices intended to prevent a removal to a federal court, where one has that fight, and should be equally vigilant to protect the right to proceed in the federal court as to permit the state courts, in proper cases, to retain their own jurisdiction.”
To deny the jurisdiction of this court in this case would be to sanction a device that is thus condemned by the Supreme Court.
The question has been considered upon the cause of action as stated by the plaintiff in her petition: Whether or not a cause of action upon other grounds might have been stated in good faith against both companies jointly has not been, and need not be, considered.
The plaintiff relies upon chapter 89, Acts 31st Gen. Assem. Iowa, as authorizing this action, against both companies jointly for the recovery of the property destroyed. Without intimating that this act. if it had been in effect at the time of this shipment, would have been applicable thereto, it is sufficient to say that it did not go into effect until July 4th, following the shipment and the destruction of the property; and that chapter 74, Acts 30th Gen. Assem., which it repeals, and for which it is a substitute, has no application to the shipment in question. It need not be further considered.
The conclusion, therefore, is that the plea to the jurisdiction should be overruled, and the motion to remand denied, and it is so ordered.