(dissenting).
This was an action against the Southern’ Pacific Company, the Pullman Company, Fred M. Dolsen, and three other defendants for damages in the sum of $50,000 for the death of Robert L. Jenkins (hereafter called decedent), an employee of the Southern Pacific Company.
The action was not brought by decedent’s personal representative. It was brought by his widow and minor child. They did not bring it under the Federal Employers’ Liability Act,14 and could not have done so. They never had any right of action under the Federal Employers’ Liability Act. Obviously, therefore, this case did not “arise” under that act.
Plaintiffs (decedent’s widow and child) were citizens of California. The Southern Pacific Company was a citizen of Kentucky. The Pullman Company was a citizen of Illinois. The citizenship of the other defendants was not indicated. Between plaintiffs and the Pullman Company there was a separable controversy, that is to say, a controversy which was wholly between them, and which could be fully determined as between them. Therefore, the case was removable15 and, on the Pullman Company’s petition, filed November 20, 1935, was duly and properly removed to the District Court of the United States.
On December 16, 1935, counsel for plaintiffs and counsel for some of the defendants stipulated that decedent’s administratrix might be substituted as plaintiff in the place and stead of his widow and child. The administratrix was not a party to the stipulation. Nevertheless, on December 27, 1935, the District Court ordered that she be substituted as plaintiff. She paid no attention to the order. She never appeared, in the District Court or in this court. The substitution order was likewise ignored and disregarded by the original plaintiffs (decedent’s widow and child) and by the District Court itself. The original plaintiffs were permitted to and did, thereafter as theretofore, prosecute the action in their own name. In permitting them to do so, the court, in effect, vacated and set aside the substitution order.
On January 22, 1936, the original plaintiffs filed a motion to remand the case to the state court. The motion was made on the wholly untenable ground that the District Court had no jurisdiction. It was not on the ground that the case was one .arising under the Federal Employers’ Liability Act § 6, as amended.16 Even if made on that ground, it would not have been well founded, since, as previously shown, the case did not arise under the Federal Employers’ Liability Act. The motion was properly denied.
On December 21, 1936, the original plaintiffs, in consideration of $2,500 paid to them by the Southern Pacific Company, executed and delivered to that company a so-called “covenant not to sue,” whereby they, the original plaintiffs, bound themselves “forever to refrain from instituting, pressing, or in any way aiding any claim, demand, action, or cause of action for damages * * * for, on account of, or in any way growing out of * * * the injury or death of [decedent].”
On December 23, 1936, in the probate court having jurisdiction of decedent’s estate, the administratrix filed a petition stating that she, the administratrix, had filed this action for damages and had executed the above-mentioned covenant. The statement was untrue. The administratrix had filed no action and had executed no covenant. Her petition prayed for an order confirming the covenant and permitting her to dismiss this action as against the Southern Pacific Company. The probate court made such an order on December 23, 1936.
On December 24, 1936, the original plaintiffs filed in the District Court a motion for dismissal of this action as against the Southern Pacific Company and defendant Dolsen. The motion was granted, and a judgment dismissing the action as against, the Southern Pacific Company and Dolsen was entered on December 28, 1936.
The case was tried on December 29, 1936. Judgment was entered on January *41222, 1937. The judgment was against the original plaintiffs. It did not mention the administratrix. The original plaintiffs appealed from the judgment. The administratrix was not a party to the judgment, did not appeal therefrom, and is not before this court, as an appellant or otherwise.
I agree with, and adopt as my own, the trial court’s opinion in this case.17
The judgment should be affirmed.
45 U.S.C.A. §1 51-59.
Judicial Code, § 28, 28 U.S.C.A. § 71.
45 U.S.C.A. § 56.
Jenkins v. Southern Pacific Co., D.C., 17 F.Supp. 820, 823. I reject, however, the inadvertent statement (17 F. Supp. 820, 821) that the action was brought by decedent’s widow, “for herself, as executrix of the estate of her deceased husband.” There was no executrix. There was an administratrix, but she did not bring or prosecute this action.