McIntyre v. Southern Ry. Co.

• Decision Date: 09 July 1904
• Citation: 131 F. 985
• Parties: McINTYRE v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

131 F. 985

McINTYRE v. SOUTHERN RY. CO.

United States Circuit Court, D. South Carolina.

July 9, 1904

Mc Cullough & McSwain, for plaintiff.

T. P Cothran, for defendants.

BRAWLEY District Judge.

This is a motion to remand the case, which was commenced in the court of common pleas for Greenville county, and removed on a petition of the Southern Railway Company, which, among other things, alleged that the complaint presented a separable controversy, and that the defendants other than the petitioner were joined for the sole purpose of preventing petitioner from removing the cause to the federal court. There was a traverse of the petition, and it was referred to the standing master to take testimony; and it appears from his report that the petitioner examined one of the plaintiff's attorneys, and his testimony is before me.

It has become a common practice, in suits for damages against railway companies, to join as defendants with the railway company an employe or several employes, charging joint negligence. It taxes the credulity of the court to believe that in suits of that character there is any bona fide expectation of recovering damages from any other than the railway companies. They are solvent and able to respond in damages, and the persons joined with them as defendants are, as a rule, men of little substance, and unable to pay any damages which may be recovered. There is in consequence, a strong presumption in every such case that employe defendants are joined for no other purpose than to defeat the right of a nonresident defendant to remove its cause to the federal court, and thus deprive it of its rights under the Constitution and laws of the United States. But cases often arise wherein it is a great hardship upon a plaintiff to have his cause removed from the county where his witnesses reside, to a forum where, by reason of his poverty he may ill afford to carry a case. In every proper case he has the right to choose the court in which his cause shall be tried; and the defendant company here, having by removal exercised its choice, has no just ground for criticism if the plaintiff wishes to exercise a like right. If there is a separable controversy, the defendant company has the right to remove; if not, not; and, to determine this question, the complaint must be examined, to see whether there is a real joint cause of action, or merely a simulated one. The pleader cannot, by mere ingenuity in the framing of his complaint, or by repeated charges of joint and concurrent negligence, make it so, when in fact it is not so.

The plaintiff is the administrator of one Patrick Brady. The defendants are the Southern Railway Company; William Grubbs, a conductor on a freight train; Ernest Culbraith, an engineer; Henry Williams, switchman and train hand; and Henry Lomax, brakeman-- all employed by the defendant company at the time of the injury complained of, and all of the last-named citizens of South Carolina. The heirs at law and distributees of Patrick Brady are his brother and sister, who live in Ireland, his sister living in New York, and certain nephews and nieces named, who are residents of Pennsylvania. Patrick Brady was killed on the track of the railway company, in or near the town of Honea Path, while crossing the track at a place where it is alleged there was a path or passageway which had been used by the public for many years with the knowledge and acquiescence of the defendant company. There was a steep grade at that point from this crossing or passageway up to the railroad station in the town of Honea Path, and the act of negligence charged is in these words:

'And then and there, in utter violation of the rules, regulations, and practices of the Southern Railway Company, the defendants, carelessly, negligently, recklessly, willfully, wantonly, and maliciously, by their joint and concurrent acts, gave to three freight box cars, which they had orders to place upon the side track of said railroad in said town, a high, unusual, and dangerous rate of speed, and then uncoupled said three freight box cars from connection with the engine of said train, and allowed said three freight box cars to roll back down said steep grade at a high, dangerous, and increasing rate of speed; the crossing or passageway aforesaid, and was in the act of crossing the side track, as he had a right to do, and as the defendants had invited him to do, the defendants, by their joint and concurrent negligence, carelessness, and recklessness, suddenly opened the switch at said end of said side track, and diverted the course of said three freight box cars into and upon said side track, and then and there, before the plaintiff's intestate could pass from the side track of said railroad, said three freight box cars, moving at said unusual and dangerous rate of speed, in utter violation of the rules of the defendant Southern Railway Company, struck, knocked down, bruised, mangled, and instantly killed plaintiff's intestate.'

It will be observed that this charges a reckless, willful, wanton and malicious act upon the part of the four defendant employes, for which they would be responsible in punitive or vindictive damages, if the proof sustained the charge. There is no charge that the principal participated in this wrongful act of its agents,...