215 U. S. DAY and HARLAN, JJ., dissenting. 279; Burlington, Cedar Rapids & Northern R. R. Co. v. Dunn, 122 U.S. 513; Crehore v. Ohio & Mississippi Ry. Co., 131 U. S. 240; Traction Company v. Mining Co., 196 U. S. 239. It is equally well settled, and is a result of the principle just stated, that where the right of removal arises because of certain facts averred in the petition, that issue cannot be tried in the state court, but must be heard in the Federal court, which alone has jurisdiction to determine such issues of fact. Carson v. Dunham, 121 U. S. 421; Burlington, Cedar Rapids & Northern R. R. Co. v. Dunn, 122 U. S. 513; Crehore v. Ohio & Miss. Ry. Co., 131 U. S. 240; Kansas City Railroad v. Daughtry, 138 U. S. 298; Traction Company v. Mining Co., 196 U. S. 239. In recent cases in this court the former adjudications have been reviewed and followed, and it has been held that for the purposes of removal the cause of action must be regarded as joint or several, accordingly as the plaintiff has averred the same to be in his complaint, in the absence of inferences arising from the pleading or shown extrinsically upon a petition for removal, which warrant the conclusion that a fraudulent joinder has been made for the purpose of avoiding the jurisdiction of the Federal court. Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131; Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206; Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Bohon, 200 U. S. 221. In the Alabama Great Southern Ry. Case, 200 U. S. 206, certain employés, citizens of Tennessee, had been joined with the Alabama and Great Southern Railroad Company in an action for negligence, and the question of the right to join them was certified to this court, and it was held, after reviewing the former cases, that, in the absence of fraudulent joinder, the cause of action might be regarded for the purposes of removal to be that which the plaintiff had averred it to be. In the Bohon Case, 200 U. S. 221, considered with the Alabama Great Southern case, supra, the action was brought against the railroad company and one Milligan, an engineer DAY and HARLAN, JJ., dissenting. 215 U. S. in charge of an engine, the negligent operation of which, it was alleged, resulted in the death of the plaintiff's intestate. It appeared that the joinder was permitted by the laws of Kentucky, and it was held in this court that, in the absence of a showing of fraudulent joinder, the case was not a removable one. An examination of the petition for removal in that case shows that while there were allegations that the joinder was fraudulent, that conclusion was averred to arise because there was no joint liability of the railroad company and the employé; that he was joined because he was a resident of Kentucky for the purpose of preventing removal. But there is no averment in the petition for removal in the Bohon case as there is in this case-that the allegations of fact upon which the complaint was based were untrue, made without any expectation of proving them, and for the purpose of defeating a removal to the Federal court. In concluding the discussion in the opinion in the Bohon case it was said (p. 226): "A State has an unquestionable right by its constitution and laws to regulate actions for negligence, and where it has provided that the plaintiff in such cases may proceed jointly and severally against those liable for the injury, and the plaintiff in due course of law and in good faith has filed a petition electing to sue for a joint recovery given by the laws of the State, we know of nothing in the Federal removal statute which will convert such action into a separable controversy for the purpose of removal, because of the presence of a nonresident defendant therein properly joined in the action under the constitution and laws of the State wherein it is conducting its operations and is duly served with process." In Wecker v. Enameling & Stamping Company, 204 U. S. 176, suit was brought in the state court in Missouri by Wecker against the Enameling and Stamping Company, Harry Schenck and George Wettengel. Wettengel was a citizen of the State of Missouri, the enameling company was a foreign corporation. The complainant charged that the plaintiff was employed by the company in working about certain pots 215 U. S. DAY and HARLAN, JJ., dissenting. used in the melting of grease and lubricant matter, which matter was delivered to the plaintiff in barrels of great weight, and which it was the plaintiff's duty to hoist to the top of the furnace and into the pots for melting. The negligence charged against the corporation consisted in allowing the pots to remain open and exposed while filled with hot and boiling lubricants, without covering, railing or device or means of any character to protect the plaintiff from slipping or falling therein, and negligently failing to provide safe and sufficient hoisting apparatus for the use of the plaintiff in his employment, and failing to instruct him in his duties, whereby and because of the negligence charged the plaintiff lost his balance and fell into one of the unguarded and open pots, receiving thereby great and painful injuries. Wettengel, it was charged, was employed by the corporation, and charged with the superintendence and oversight of the plaintiff in the performance of his duties, and with the duty of superintending and planning the construction of the furnace, and providing for the pots a reasonably safe and suitable covering, and sufficiently safe hoisting apparatus, and with the duty of instructing the plaintiff as to the manner of performing his duties. The complaint charges the negligence of Wettengel in planning and directing the construction of the furnace structure and in providing suitable coverings and railings, and in providing and placing reasonably safe and sufficient hoisting apparatus, and in giving instructions as to the manner of performing the plaintiff's duties, and therefore charges that the negligence of the corporation and Wettengel, jointly, caused the injury, and prayed for a joint judgment against them. In its petition for removal the non-resident corporation charged that Wettengel was not, at the time of the accident and prior thereto, charged with the superintendence and oversight of the plaintiff, or with the duties of planning or directing the construction of the furnace, or providing a reasonably safe and suitable furnace and pots and railings or other device to protect the plaintiff, and was not charged DAY and HARLAN, JJ., dissenting. 215 U.S. with the duty of placing reasonably safe and sufficient hoisting apparatus, nor with the duty of instructing the plaintiff in respect to his duties; that Schenck was a non-resident of Missouri, and that Wettengel had been improperly and fraudulently joined as a defendant for the purpose of fraudulently and improperly preventing, or attempting to prevent, the defendant from removing the cause to the United States Circuit Court, and that plaintiff well knew at the beginning of the suit that Wettengel was not charged with the duties aforesaid, and joined him as a defendant to prevent the removal of the case, and not in good faith. Defendant offered affidavits tending to show that Wettengel was employed in the office as a draftsman; that he had nothing to do with the selecting of plans or approving the same; that he had no authority to superintend the work or to give instructions to any of the men as to the manner in which they should perform the work; that he was merely a subordinate in the employ of the company, whose sole duties were to attend to the mechanical work of drafting, to make the necessary drawings for the use of the mechanics, and he had nothing to do with the providing of the pots, railings, etc., or the hoisting apparatus; that his position was merely clerical, and confined to the making of drawings to enable mechanics to construct work from plans furnished by others in the employ of the defendant. Upon these affidavits the Circuit Court reached the conclusion that the attempt to join Wettengel was not made in good faith; that the allegations as to him were fraudulent and fictitious, for the purpose of preventing a removal to the Federal court. This court declined to consider the question as to whether, as a matter of law, the cause of action was joint or several, or whether, upon the allegations of the complaint, Wettengel could be held jointly with the corporation, (204 U. S. 183), and affirmed the judgment of the court below upon its findings of fact upon the issue of fraudulent joinder. This case, therefore, held the doctrine of this court to be 215 U. S. DAY and HARLAN, JJ. dissenting. that the Circuit Court of the United States upon a proper petition for removal may examine into the merits sufficiently to determine whether the allegations, by reason of which a non-resident defendant may be sued in a state court, are fraudulently and fictitiously made for the purpose of preventing removal. It is true that where one has a cause of action of which both state and Federal courts have jurisdiction his motive in bringing the action in the one jurisdiction or the other is immaterial, and he may sue in the state court because he preferred that jurisdiction to a Federal court to which he had an equal right to go. But this case presents a very different question. The inquiry here is not whether a cause of action exists which may be prosecuted in either court, but whether the allegations of the complaint, which give the right to a joint action in the state court, are falsely and fictitiously made without the intention of proving them, and with the sole purpose of avoiding Federal jurisdiction. Since its decision the case of Wecker v. The Enameling & Stamping Company has been frequently cited and followed in the Federal courts. McGuire v. Great Northern Ry. Co., 153 Fed. Rep. 434; Donovan v. Wells, Fargo & Co., 169 Fed. Rep. 363; Lockard v. St. Louis & S. F. R. Co., 167 Fed. Rep. 675; People's U. S. Bank v. Goodwin, 160 Fed. Rep. 727; McAlister v. Chesapeake & Ohio Ry. Co., 157 Fed. Rep. 740. Applying these principles to the case at bar, the allegations of the complaint filed in the state court undertook to make a cause of action against the Illinois Central Company, the non-resident corporation, upon three grounds: First, because it was jointly liable with the Chicago, St. Louis and New Orleans Railroad Company, the local corporation, for a defective roadbed; second, because it was liable for the negligent conduct of the conductor, Durbin, in running its trains; third, because it was liable for the negligent and improper construction of its locomotive and cars. As to the third ground of the complaint, the defective locomotive and |