131 F. 985 (D.S.C. 1904), McIntyre v. Southern Ry. Co.

Citation:131 F. 985
Case Date:July 09, 1904
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 985

131 F. 985 (D.S.C. 1904)




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

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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...

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