Barwick v. Piatt, 1052.
| Decision Date | 12 October 1943 |
| Docket Number | No. 1052.,1052. |
| Court | U.S. District Court — District of South Carolina |
| Parties | BARWICK v. PIATT et al. |
John G. Dinkins, of Manning, S. C., and J. Frank Eatmon, of Kingstree, S. C., for plaintiff.
Robert McC. Figg, Jr., of Charleston, S. C., and Willcox, Hardee, Houck & Wallace, of Florence, S. C., for defendants.
The above entitled cause was commenced by appropriate service and filing of a summons and complaint in the Court of Common Pleas for Clarendon County, South Carolina. The defendant, Atlantic Coast Line Railroad Company, filed proceedings for removal into this court, and subsequently another petition for removal was filed, the same being a joint petition by the two defendants.
The complaint alleges that the plaintiff suffered personal injuries as the result of a collision between a train of the Atlantic Coast Line Railroad Company and a trailer truck belonging to the defendant, Piatt. It is alleged that the vehicle was being driven by an agent of Piatt across the tracks of the railroad company at St. Stephen, S. C., and a through train struck it and hurled portions of the trailer truck a considerable distance the same striking and injuring the plaintiff. The complaint sets out various specifications of negligence and alleges that the injuries were caused by the joint and concurrent negligence of the two defendants.
The petition to remove is based on two grounds. The first is that the plaintiff is a citizen of South Carolina, while both defendants are citizens of other states, the railroad company being incorporated under the laws of Virginia and Piatt is alleged to be a citizen of Missouri. The second ground for removal is that the cause is one wherein there is a separable controversy. The plaintiff has appeared and moves to remand the cause to the State Court, traversing the allegation as to Piatt being a citizen of Missouri and alleging that there is no separable controversy.
As to the first ground, on behalf of the plaintiff, numerous affidavits have been filed and I have heard oral testimony. It appears that the defendant, Piatt, was a citizen and resident of the State of Missouri and that in February 1940, over three years ago, he came to South Carolina, being then employed by a logging concern. When the business in which that company was engaged ended, Piatt remained in this state; established a home in Clarendon County; has paid taxes on his personal property here; has paid poll taxes for two years, and is on the tax books for 1943 (the time for paying these taxes not yet being past due); has engaged in business on his own account in and around South Carolina; made application for and obtained resident hunting licenses and automobile licenses; and a written statement was introduced which had been signed by Piatt stating that he considered himself a citizen and resident of South Carolina. It also appears that Mrs. Piatt resides in Clarendon County and has evidenced her intention of citizenship by enrolling for voting there. Piatt appeared and testified and states that his intention was to return some time to Missouri and that he is not a citizen of South Carolina. However, this statement is made after suit has been instituted and his testimony was evasive and was flatly contradicted in several respects. His own written statement and the facts adduced as to his business connections; his payment of poll taxes, which a non-resident would not have to pay; his application for automobile licenses as a resident, when he could have applied as a non-resident, there being a special portion of the application blank provided for that purpose; his application for, and obtaining, residential hunting licenses; and all facts surrounding the matter, which have been presented to me, convince me that Piatt is a citizen and resident of South Carolina. Having reached this conclusion, the first ground above set forth for removal to this court, namely, diversity of citizenship between the plaintiff and the defendants, fails, and the cause is not removable on that ground.
The other ground, namely, that there is a separable controversy, provides a more difficult and interesting situation. It is not claimed that the cause of action set forth by the plaintiff as against the two defendants is separable and no argument is made on that ground. The railroad company, however, most earnestly argues that there is a separable controversy by reason of the fact that it has instituted a cross claim against its co-defendant. The pleadings in this cause show that the railroad company has filed an answer denying the allegations of plaintiff's Complaint, and in addition, has filed a cross claim against the defendant, Piatt, wherein it alleges that Piatt's negligence in causing the vehicle to be driven across the right of way of the railroad in the face of warning signals caused the collision with a locomotive operated by the railroad company, as a result of which the locomotive was damaged in its running equipment, the train was caused to stop and was delayed in arriving at its destination and the...
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