Scott-MacGeorge Bldg. Co. v. City of Seattle , 56 F.2d 414 ( 1931 )

NETERER, District Judge

(after stating the facts as above).

The weight of the manhole on the gas main and the weight of both upon the water main of “insufficient tensile strength” caused the break. No deduction from the complaint states a cause of action against the telegraph company, disassociated from the other defendants. Nowhere does it appear, even inferentially, that the conduit or the manhole, or any act of the telegraph company, of itself, caused the injury. It was the concurrent acts of all. It was the combined weight of the manhole and the gas main and the proximity of each to the water main and each other, negligently placed by defendants separately as to their appliances, and the insufficient strength of the water main to resist the added burdens, the concurrent act of all, that brought the result. The degree of negligence is immaterial as to jurisdiction. It is enough if the injury was caused by the direct, common, concurrent, and joint co-operation of all the appliances of the defendants, which were constructed in dangerous proximity to each other, of insufficient strength and insufficient base of support. Citations are deemed unnecessary. The allegations of the complaint control. The last expression of the Supreme Court is conclusive. In Hay v. May, etc., Co., 271 U. S. 318, at page 321, 46 S. Ct. 498, 499, 70 L. Ed. 965, the court says: “It is well settled by the decisions of this court, that an action brought in a State court against two defendants jointly, in which the plaintiff states a case of joint liability arising out of concurrent negligence of the defendants, does not present a separable controversy authorizing the removal of the cause to a Federal court, even though the plaintiff might have sued the defendants separately, the allegations of the complaint being decisive as to the nature of the controversy in the absence of a showing that one of the defendants was fraudulently joined for the purpose of preventing the removal. [Citing cases.]”

Remand is granted.