Coker v. Monaghan Mills

• Decision Date: 17 September 1901
• Citation: 110 F. 803
• Parties: COKER v. MONAGHAN MILLS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

110 F. 803

COKER v. MONAGHAN MILLS et al.

United States Circuit Court, D. South Carolina.

September 17, 1901

Carey &amp McCullough, for plaintiff.

Haynsworth & Patterson and Wm. G. Sirrine, for defendants.

SIMONTON Circuit Judge.

This case comes up on a petition of the Flynt Building &amp Construction Company, a corporation of the state of Massachusetts, praying that the plaintiff be enjoined from proceeding any further against it in the state court, because it has filed the record in this court after a petition for removal, with proper bond. This motion has been here before. But it appeared that, although the petition for removal had been filed with the clerk of the state court, it never had been presented to the state court itself, no term of that court having been held since it was filed. Under these circumstances, in deference to the state court, this court declined to entertain the motion, and so anticipate or forestall the action of the state court. But it also appearing that, notwithstanding the filing of the petition and notice thereof, the plaintiff was pressing her case in the state court, and insisting on certain notices, and so assuming to anticipate the action of the state court, this court, having the parties before it on this motion, entered an order enjoining any action of the part of the plaintiff until the state court had received, considered, and decided upon the petition for removal. The case will be stated in full. There are two questions: (1) Is the cause removable at the instance of the petitioner, on the ground that there is a separable controversy? (2) If so, will this court enjoin further proceedings in the state court, which has denied the petition for removal?

The action is brought by Margaret Coker, as administratrix, for damages resulting from the death of her son, James H. Coker who died intestate. The complaint has 20 paragraphs. The first two set out the corporate character of the two defendant corporations, the Monaghan Mills, a corporation of the state of South Carolina, and the Flynt Building &amp Construction Company, a corporation of the state of Massachusetts, the two defendants. The third to the fourteenth paragraphs, inclusive, set out the cause of action against the Monaghan Mills as follows: That it is the owner of a certain brick building, three stories high, constructed for the purpose of manufacturing cotton goods, in which it was engaged in having certain machinery and other appliances placed. The east end of this building was shut in by a wooden partition, instead of a brick wall, so as to provide for further extension of the building if this became advisable. Alongside of this partition was a stairway from the bottom to the top floors, out of which doors entered upon the several floors, which doors swing inside of the building, and to the right. Those who had occasion to go from the ground to any floor of this building were permitted and accustomed to use this stairway . Its doors were not locked, and the stairway was free to be used. On 28th January, 1901, plaintiff's intestate was in the employ of the Sacco & Petty Machine Shops, a corporation which had sold certain machinery to the Monaghan Mills, and was bound by contract to place said machinery in such mills as the Monaghan Mills would direct. At the instance and request of the Monaghan Mills and said Sacco & Petty Machine Shops directed the intestate of plaintiff on that day to go to the Monaghan Mills and report for orders, and, having so reported, was directed by it to place certain machinery on the third floor of the building. The intestate had never been in the building before, knew nothing of its interior arrangements, was not apprised thereof by the Monaghan Mills, nor was he warned of any danger in approaching or entering the said third floor by means of said stairway, and through the door entering therefrom. Just inside the building, within a few inches of said door, was an elevator shaft, an open space 10 feet square and 50 feet deep, leading from the first floor to the third, having no fencing, railing, or other protection around it, totally exposed, in such close proximity to the doorway that one entering it and unaware of its dangerous position, by taking one step forward would fall into it, and through the shaft to the floor beneath. That on this morning the intestate of plaintiff, being so ordered to go to the third floor to place said machinery, unaware of any peril, went up said stairway, opened the unlocked door, took one step forward, and fell into and down the elevator shaft, and was instantly killed. Such is the charge against the Monaghan Mills. The fifteenth paragraph introduced the Flynt Building & Construction Company, as follows: That this company had a contract to erect this building and turn the same over complete to the Monaghan Mills, and under the terms of this contract it was the duty of the building and construction company to see that the premises were safe and suitable, and the elevator...