Bryce v. Southern Ry. Co.

• Decision Date: 01 April 1903
• Citation: 122 F. 709
• Parties: BRYCE v. SOUTHERN RY. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

122 F. 709

BRYCE v. SOUTHERN RY. CO. et al.

United States Circuit Court, D. South Carolina.

April 1, 1903

J. P K. Bryan, for plaintiff.

J. W Barnwell, for defendants.

SIMONTON Circuit Judge.

This case comes up on a motion to remand it to the state court. An action was brought in the court of common pleas of Orangeburg county, S.C., by William Bryce against the Southern Railway Company, Edward Bird, and James Harling. A petition for removal, with bond, was filed in and presented to the state court. Hearing the petition, an order of removal was passed and the record is here on this motion to remand.

The Southern Railway Company is a corporation of the state of Virginia. The grounds for removal stated in the petition are that the action is brought by the plaintiff, a citizen and resident of South Carolina, for damages resulting to him by reason of derailment of a train on which he was a passenger caused by the negligence of the railway company and its servants, the plaintiff also charging that the negligence was reckless, the joint negligence and recklessness of all the defendants named; that the defendants Bird and Harling, alleged to be the one the engineer and the other the conductor of the train, are not charged in the complaint with any actionable negligence jointly with the railway company, or any joint, actionable, reckless tort or wrong for which, under the terms of the complaint, they could be held liable in this court, but that they are put in as defendants solely for the purpose of preventing the removal of the cause to the federal court; that they are merely nominal, and not necessary, parties to the cause. The petition also states on information and belief that Harling is a citizen of North Carolina.

To the decision of the question now before the court we must look to the allegations of the complaint alone. L. & N.R.R. Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed. 473. The only exception to this is that the petition may be resorted to if the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal to this court. The petition alleges this, but, as no evidence was offered at the hearing, the defendant relies for the proof of this charge upon the allegations of the complaint, so practically the right of removal must be tested by the allegations of the complaint. The complaint, after stating that the Southern Railway Company operates a railroad between Spartanburg and Charleston, S.C., running through certain counties named, among them Richland county, and is a common carrier of passengers between said points, and that plaintiff is a railway mail clerk, so a passenger on the railroad passenger train of said company, proceeds:

'That on the 24th day of August, 1902, while the plaintiff was in such mail car on said train on said railroad, being so conveyed, within about six miles from the city of Columbia, the said car in which the plaintiff was, together with other cars of the same train, was derailed, and hurled down an embankment and overthrown, and plaintiff was greatly injured, wounded, his leg broken, and otherwise hurt and damaged in his person. That the said wreck and derailment of said train and mail car in which the plaintiff was then riding and in discharge of his duties as such railway mail clerk was caused by the negligence of said defendant Southern Railway Company and their servants. That at the time and place when and where the plaintiff was injured as aforesaid the defendants Edward Bird was the engineer and James Harling was the conductor, servants of the said Southern Railway Company, defendant, in charge and control of said train respectively as engineer and conductor of said train, and that the said negligence of the said servants, and other of its servants then and there in its employment, and said negligence was the joint negligence of all of the said defendants. And plaintiff further alleges that the negligence of the said Southern Railway Company causing derailment and wreck of said train and the injuries to plaintiff, as aforesaid, was also reckless, and was the joint recklessness of all said defendants in running said train.'

Does this complaint state a separable controversy with the Southern Railway Company? We must assume that the allegations of the complaint are confessed (East Tenn., V. & G.R.R Co. v. Grayson, 119 U.S. 240, 7 Sup.Ct. 190, 30 L.Ed. 382), that is to say, such allegations as are well pleaded. The complaint sets out an action for tort, and, claiming to have a cause of action against the conductor and engineer, joins the railway company with them as defendants, charging them jointly. The plaintiff could have sued each of them severally. He has elected to sue them jointly. That is his cause of action, the subject-matter of the controversy; and for all the purposes of this suit this is whatever the plaintiff declares it to be in his pleading. The defenses may be separate, and they may defeat a joint recovery. The plaintiff takes the risk of this, and the defendants cannot deprive the plaintiff of his right to prosecute his own suit to a final determination. L. & N.R.R. Co. v. Ide, 114 U.S. 52, 5 Sup.Ct. 735, 29 L.Ed. 63, quoted and affirmed in Connell v. Smiley, 15 Sup.Ct. 353, 39 L.Ed. 443, and Chesapeake, etc., Ry. v. Dixon, 179 U.S. 138, 21 Sup.Ct. 67, 45 L.Ed. 121. It may be that this allegation of a joint tort is colorable, and has been made to deprive United States courts of jurisdiction. But this would be a good defense to the action, not a ground for removal. Provident Life Assur. Soc. v. Ford, 114 U.S. 635, 5 Sup.Ct. 1104, 29 L.Ed. 261. As to the question whether the fact of the joinder of the railway company with its employes should prevent a removal to this court, it is not possible to distinguish this case from that of the Chesapeake, etc., Ry. v. Dixon, supra. In that case an action was brought for personal injuries in a state court of Kentucky by Dixon against a railroad company and the engineer and fireman of the train. A petition for removal was filed by the railroad company on the ground of a separable controversy. The petition was refused, and the order refusing a removal was carried by appeal into the Supreme Court of Kentucky, was there affirmed (47 S.W. 615), and was then carried by writ of error into the Supreme Court of the United States. That court affirmed the decision of the Kentucky court. Chief Justice Fuller, and rested his decision upon the allegations of the pleading of the plaintiff. 'If the liability of the defendants, as set forth in that pleading was joint, and the cause of action entire, the controversy was not separable. As a matter of law the plaintiff's purpose in joining engineer and fireman was immaterial. ' The question is fully discussed, and the cases and principle stated above fully affirmed and maintained. In Gableman v. Peoria, etc., R.R. Co., 179 U.S. 131, 21 Sup.Ct. 171, 45 L.Ed. 220, the chief justice, quoting this Dixon Case, states the point decided thus: 'And in respect to the removal of actions of tort on the ground of separable controversy, the existence of such controversy must appear on the face of the plaintiff's pleading, and it does not so appear if the defendants are charged with direct or concurrent or concerted wrongful action. ' It is clear both from the decision of the Kentucky Court and of the Supreme Court that the motive of the plaintiff in joining these two defendants, even if it was for the single purpose of preventing removal into the federal court, was immaterial, unless these defendants were illegally and wrongfully joined. Have they been illegally joined? If the allegations of this...