Feaster v. Southern Ry. Co.

• Decision Date: 19 October 1926
• Docket Number: No. 2453.,2453.
• Citation: 15 F.2d 540
• Parties: FEASTER v. SOUTHERN RY. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

15 F.2d 540 (1926)

FEASTER v. SOUTHERN RY. CO. et al.

No. 2453.

Circuit Court of Appeals, Fourth Circuit.

October 19, 1926.

John F. Williams, of Aiken, S. C. (Williams, Croft & Busbee, of Aiken, S. C., on the brief), for plaintiff in error.

P. F. Henderson, of Aiken, S. C. (F. G. Tompkins, of Columbia, S. C., and Hendersons & Salley, of Aiken, S. C., on the brief), for defendants in error.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

ROSE, Circuit Judge.

In this case the plaintiff in error, plaintiff below, and so styled here, seeks to recover from the Southern Railway Company, hereinafter referred to as the railway, and from one Henry Britt, for the death of a certain E. M. Feaster. The suit was originally brought in the court of common pleas for Aiken county, S. C. It was removed to the District Court of the United States on the petition of the railway, on the ground that the plaintiff was a citizen of South Carolina and it a corporation of Virginia, and that plaintiff's controversy with it was separable from any she had with Britt, a citizen of South Carolina; that in fact her complaint as against him disclosed no cause of action whatever, and that in any event his joinder as a defendant was fraudulently made, for no other purpose than that of defeating the railway's right of removal. In support of the last-mentioned ground, the railway filed with its petition two affidavits. The petition was submitted to the learned judge of the state court, who heard argument upon it. After full consideration, in an able and learned opinion, he held that the removal should be made and so ordered. After the transcript of record reached the United States court, the plaintiff moved to remand the cause to the state tribunal, and filed one affidavit in support of her motion. The railway countered with two answering affidavits, and after a hearing the learned District Judge handed down an opinion stating his reasons for refusing a remand.

The defendants then demurred to the complaint. After argument the demurrer was sustained, in an opinion which pointed out the respects in which the court thought the allegations of the plaintiff's pleading failed to make out a case. The plaintiff was given leave to amend if she could. She did not avail herself of the privilege and judgment went against her. She assigns 12 errors, but they raise but two questions: Was the case removable? and did the complaint disclose a cause of action against either defendant?

The circumstances out of which the present controversy arose had their origin in the nation-wide strike of railway shopmen in the summer of 1922. Not a few tragedies, in addition to the one with which we are immediately concerned, grew out of it, or were in time and place associated with it, among them the murder referred to in the recent case of St. Louis, San Francisco Railway Co. v. Mills, 46 S. Ct. 520, 70 L. Ed. 979, decided by the Supreme Court on the 24th of last May.

The complaint alleged that the railway operated in interstate commerce a railroad between Charleston, S. C., and Augusta, Ga., and maintained at Aiken and Hamburg, in the former state, shops and yards for the repair and handling of rolling stock used in such commerce. It said of Britt's relations to the railway that he was "in charge of the shops and yards * * * under some arrangement with his codefendant whereby it became his duty to maintain the forces and orderly management thereof in the shops and yards, * * * and most particularly with respect to the employment, supervision, and maintenance of the watchmen and guards maintained upon" and about the yards and shops "for the protection of the property and property rights" of the railway.

In substance the complaint alleged that, in consequence of the breaking out of the shopmen's strike, the defendants employed Feaster as a night watchman, and that, some time between 3 a. m. and daylight of August 30, 1922, he, while in the discharge of his duties, was shot, beaten, bruised, and killed. It said that his death was due to the negligence of the defendants (1) in failing to give him a safe place to work, in that the yards and shops were surrounded by hills and swamps, were in large part isolated from the traveling public and were wholly without municipal protection; (2) in not providing him with proper appliances for his work, in that they did not furnish him with sufficient weapons or enough fellow guards to enable him to perform his duties without extreme danger of losing his life; (3) that they allowed some of the railway employees known by them to be hostile to him and his fellow guards to come into and work in the shops and yards, so that such employees had an opportunity to act, not only as spies, but as actual instruments of murder, and that such employees contributed to his death. There then follows a very generally worded allegation, which, if it is to be given its broadest interpretation and then taken literally, amounts almost, if not quite, to a charge that the defendants made themselves accessories after the fact to the murder. It is said that after Feaster's death the defendants entered into an agreement with the employees who had contributed to his killing to retain them in the employ of the railway, and that at the time such agreement was made they had full knowledge of the part such employees had played in his death, so that they thereby ratified, encouraged, and confirmed the acts of the employees in question.

The complaint further asserted that the defendants knew of all the dangers of the employment into which they had permitted Feaster to enter, of the numerical inadequacy of the guarding force, of the insufficiency of its weapons, and of the intense hostility of both the strikers and of many other railway employees who were not, to him and his fellow guards, that Feaster was ignorant of all these things, and that the defendants gave him no warning of any of them. The complaint concludes by alleging that by reason of such acts and omissions of the defendants, Feaster was murdered and seeks damages therefor.

The two affidavits which, as has been stated, the railway filed in support of its petition for removal, were made by Britt and by the sheriff of the county in which the yards and shops were, and in which Feaster met his death. From them it appeared that Britt was a sergeant in the railway's police force, and as such had charge of the policing of the Hamburg yards; that in July, 1922, his superior told him to employ three extra guards, and no more; and that in pursuance of this direction he engaged Feaster and two others. Ten...