Messrs. Alexander A. Lawrence and William W. Osborne, both of Savannah, Ga., for petitioner.
Messrs. H. W. Johnson and T. M. Cunningham, Jr., both of Savannah, Ga ., for respondents.
Mr. Justice BRANDEIS delivered the opinion of the Court.
An injured employe brought an action in a state court of Georgia jointly against a railroad and its engineer, and sought in a single count, which alleged concurring negligence, to recover damages from the company under the federal Employers' Liability Act (Comp. St. 8657-8665), and from the individual defendant under the common law. Each defendant filed a special demurrer on the ground of misjoinder of causes of action and misjoinder of parties defendant. The demurrers [252 U.S. 109, 110] were overruled by the trial court. The Court of Appeals-an intermediate appellate court to which the case went on exceptions-certified to the Supreme Court of the state the question whether such joinder was permissible. It answered in the negative. 147 Ga. 428, 94 S. E. 558. Thereupon the Court of Appeals reversed the judgment of the trial court ( 21 Ga. App. 558, 94 S. E. 888), and certiorari to the Supreme Court of the state was refused. The plaintiff then applied to this court for a writ of certiorari on the ground that he had been denied rights conferred by federal law, and the writ was granted.
Whether two causes of action may be joined i. e. single count or whether two persons may be sued in a single count are matters of pleading and practice relating solely to the form of the remedy. When they arise in state courts the final determination of such matters ordinarily rests with the state tribunals, even if the rights there being enforced are created by federal law. John v. Paullin, 231 U.S. 583 , 34 Sup. Ct. 178; Nevada-California-Oregon Railway v. Burrus, 244 U.S. 103 , 37 Sup. Ct. 576. This has been specifically held in cases arising under the federal Employers' Liability Act. Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211 , 36 Sup. Ct. 595, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505; Atlantic Coast Line Railroad Co. v. Mims, 242 U.S. 532 , 37 Sup. Ct. 188; Louisville & Nashville Railroad Co. v. Holloway, 246 U.S. 525 , 38 Sup. Ct. 379. It is only when matters nominally of procedure are actually matters of substance which affect a federal right, that the decision of the state court therein becomes subject to review by this court. Central Vermont Railway Co. v. White, 238 U.S. 507 , 35 Sup. Ct. 865, Ann. Cas. 1916B, 252; New Orleans & North Eastern Railroad Co. v. Harris, 247 U.S. 367 , 38 Sup. Ct. 535
The federal Employers' Liability Act does not modify in any respect rights of employes against one another existing at common law. To deny to a plaintiff the right to join in one count a cause against another employe with a cause of action against the employer in no way abridges any substantive right of the plaintiff against the [252 U.S. 109, 111] employer. The argument that plaintiff has been discriminated against because he is an interstate employe is answered, if answer be necessary, by the fact that the Supreme Court of Georgia had applied the same rule in Western & Atlantic R. R. et al. v. Smith, 144 Ga. 737, 87 S. E. 1082 (22 Ga. App. 437, 96 S. E. 230), where it refused under the state Employers' Liability Act (Civ. Code 1910, 2782 et seq.) to permit the plaintiff to join with the employer another railroad whose concurrent negligence was alleged to have contributed in producing the injury complained of. If the Supreme Court of Georgia had in this case permitted the joinder, we might have been required to determine whether, in view of the practice prevailing in Georgia, such decision would not impair the employer's opportunity to make the defenses to which it is entitled by the federal law. For, as stated by its Supreme Court in this case (147 Ga. 428, 431, 94 S. E. 558, 560):
But we have no occasion to consider this question. Refusal to permit the joinder did not deny any right of plaintiff conferred by federal law. Cases upon which petitioner most strongly relies (Southern Railway Co. v. Carson, 194 U.S. 136 , 24 Sup. Ct. 609; Alabama Great Southern Railway Co. v. Thompson, 200 U.S. 206 , 26 Sup. Ct. 161, 4 A n. Cas. 1147; Southern Railway Co. v. Miller, 217 U.S. 209 , 30 Sup. Ct. 450) are inapplicable to the situation at bar.