Forrest v. Southern Ry. Co.
| Decision Date | 05 October 1937 |
| Docket Number | No. 2657.,2657. |
| Citation | 20 F. Supp. 851 |
| Court | U.S. District Court — District of South Carolina |
| Parties | FORREST v. SOUTHERN RY. CO. et al. |
W. K. Charles, of Greenwood, S. C., for plaintiff.
Blythe & Bonham, of Greenville, S. C., for defendant Southern Ry. Co.
This matter is before me upon motion of plaintiff to remand the case to the court of common pleas for Greenwood county, S. C., from whence it was removed upon the petition of the Southern Railway Company upon the grounds of separable controversy and fraudulent joinder.
The action is one for the recovery of damages against the defendants for the death of plaintiff's intestate which occurred at a railway crossing in a collision of a freight train of the Southern Railway Company and the automobile in which plaintiff's intestate was riding, and is alleged to have been caused by the joint and concurrent acts of negligence of the defendants in the particulars named in the complaint. These allegations substantially charge the defendants with negligence in the construction and maintenance of the railway crossing, with the failure to keep the roadbed in repair, and the right-of-way of the railway company adjacent to the crossing free from bushes which obstructed the view of the crossing, with the failure to provide proper signs and maintain suitable safeguards and warnings at the crossing, the operation of the train at an unlawful high rate of speed, failure to ring the bell or blow the whistle, as required by the South Carolina statute (Code, S.C.1932, §§ 5832, 8355, 8356, 8430, 8448), and that the engineer in charge of the train, and other servants of the railway company, including the resident defendant, Dan Tinkler, the roadmaster of the railway company, were incompetent and unfit for the performance of the duties assigned to them. It will be observed that some of the particulars charge delicts against both defendants, some allege failure of due care against the railway company alone, and some charge only the resident defendant with negligence, but the plaintiff says in his complaint that all the particular acts of negligence recited therein were joint acts of negligence and combined and concurred with each other to directly and proximately cause the death of plaintiff's intestate.
It is the contention of the Southern Railway Company that the complaint states a joint cause of action against both defendants, but, by reason of the specifications of negligence charged solely against the railway company, it also states a separate cause of action against the Southern Railway Company, and that it follows that there is a separable controversy between it and the plaintiff within the meaning of the removal statute, and bases this contention upon certain decisions of the South Carolina Supreme Court.
It has been well settled: That where the liability of defendants as set forth in the pleadings is joint, or joint and several, then the controversy is not separable as a matter of law; that when concurrent negligence is charged the controversy is not separable; that the plaintiff's purpose in joining the resident defendant is immaterial because his motive in the performance of a lawful act cannot be questioned; that the defendant has no right to say that an action shall be separable, which the plaintiff elects to make joint, and cannot prevent a plaintiff from prosecuting his suit to a final determination in his own way; that an action for tort which might have been brought against many persons, or against any one or more of them, and which is brought in the state court against all jointly, contains no separable controversy which will authorize its removal by some of the defendants to the federal court; that the cause of action is the subject matter of the controversy, and that it is, for the purpose of the suit, whatever the plaintiff declares it to be in...
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...prerogative of the State court to dismiss upon demurrer or grant a nonsuit, and not the prerogative of this court. Forrest v. Southern Railway Co., D.C., 20 F.Supp. 851. I am only concerned in deciding the following questions: Whether or not the plaintiff had any reasonable basis for joinin......
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United States v. Sloan
...Court itself reverses its opinion this court is governed by it. Valli v. United States, 1 Cir., 94 F.2d 687; Forrest v. Southern Railway Co., W.D.D.C.,S.C., 20 F.Supp. 851, 854. Any person violating the statute alleged in the information filed against the defendant in this case is by the st......
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Jacks v. Torrington Company, Civ. A. No. 66-115.
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Barfield v. Southern Ry. Co.
...the defendants, and contains no separable controversy between the plaintiff, and the defendant, Railway Express Agency. Forrest v. Southern Ry. Co., D. C., 20 F.Supp. 851. This cause cannot, therefore, be removed to this court on the ground of separable controversy. Nor can it be removed on......