Hough v. Southern Ry. Co.

• Decision Date: 27 May 1907
• Citation: 57 S.E. 469,144 N.C. 692
• Parties: HOUGH v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

57 S.E. 469

144 N.C. 692

HOUGH v. SOUTHERN RY. CO.

Supreme Court of North Carolina

May 27, 1907

Appeal from Superior Court, Buncombe County; Cooke, Judge.

Action by Matilda Hough against the Southern Railway Company. From an order granting a petition for removal of the action to the federal court, plaintiff appeals. Reversed and remanded.

An action for a joint omission of duty may be made joint or several at the election of plaintiff, and the tort-feasors cannot be heard to complain since the plaintiff's election finally determines the question.

This action was brought to recover damages for the death of plaintiff's intestate which is alleged to have been caused by the negligence of the defendants. The intestate was killed in a wreck resulting from the collision of two trains on the road of the railway company which were moving in opposite directions. The plaintiff alleges in her complaint that at the time of the collision the defendant W. C. Hudson was train dispatcher the defendant L. D. Flack was telegraph operator and station agent at Swannonoa, and the defendant O. F. Hallam was telegraph operator and station agent at Black Mountain, all of them being in the employ of their codefendant, the Southern Railway Company, and that the plaintiff's intestate was at the same time the conductor of one of the colliding trains which was proceeding from Asheville to Salisbury, and in the proper discharge of his duties as such. The railroad at the time of the collision was being operated by the defendant corporation. The plaintiff further alleges in section 4 of her complaint, as follows: "On the 18th day of February, 1906, the said W. R. Hough, the plaintiff's intestate, was killed by the negligence of the defendants. The said negligent killing of plaintiff's intestate was in and caused by the collision and wreck of two trains owned and operated by the defendant railway company between Swanannoa station and the town of Black Mountain, and the said collision, wreck, and killing was caused by the negligence of the defendants, and their negligent failure to perform and discharge the duties which they owed to plaintiff's intestate. By the negligent killing of the plaintiff's intestate, as herein set forth, the plaintiff has been damaged in the sum of $50,000,"" for which sum she prayed judgment. The defendants the Southern Railway Company and W. C. Hudson jointly answered the complaint, and admitted the truth of all its allegations, except those contained in the fourth section thereof, and except, also the allegation that the plaintiff at the time he was killed was in the proper discharge of his duty as conductor of the train from Asheville to Salisbury, and these were denied. The qualification of the plaintiff, as administrator of the intestate, is also alleged and admitted. The defendants specially averred in their answer, as a defense to the action, that the intestate's death was caused by his own negligence, in that he disobeyed a written order delivered to him when he left Asheville, and by which he was notified that the train proceeding from Salisbury to Asheville, and known as ""Second No. 11," was running 2 hours and 40 minutes late; that it then became his duty under the known rules and regulations of the company to take the siding at Swannanoa station with his train, which was "Second No. 11," and wait for the other train to pass. Instead of doing so, he negligently undertook to run his train beyond Swannanoa to Black Mountain, and met second No. 11 between the two stations, where the collision occurred. The complaint was filed on December 11, 1906, and the answer on February 23, 1907. Between the two dates-- that is, on February 21, 1907--the defendant the Southern Railway Company filed a petition in the state court for the removal of the case to the United States Circuit Court, alleging diverse citizenship between the railway company and the plaintiff, and making the necessary formal allegation as to the amount in controversy. It is then alleged in the petition that the petitioner operates one of the largest railway systems in this country and is amply solvent and able to pay any judgment the plaintiff may recover in this action, and that W. C. Hudson and the other defendants are insolvent and unable to pay any amount. The petitioner further alleges as follows: "That she is advised, informed, and verily believes that the plaintiff wrongfully and unlawfully joined with the petitioner, the said W. C. Hudson, L. D. Flack, and O. T. Hallam as sham defendants for the fraudulent purpose of preventing the removal of this suit by your petitioner, the real defendant, to the federal court; that the said defendants, W. C. Hudson, L. D. Flack, and O. T. Hallam, were in no wise connected with or responsible for the collision in which the plaintiff's intestate lost his life; that in no view of this suit are the said W. C. Hudson, L. D. Flack, and O. T. Hallam more than mere nominal or formal parties joined with your petitioner, for no other purpose on the part of the plaintiff than to deprive your petitioner of its legal right of removal herein; that no substantial relief could possibly be obtained against the said defendants W. C. Hudson, L. D. Flack, and O. T. Hallam; and that they are neither proper nor necessary parties to a complete and final determination of this action. If said W. C. Hudson, L. D. Flack, and O. T. Hallam are proper and necessary defendants in this suit, which is expressly denied, the said controversy is of a separable nature and is a separable controversy, as appears from the complaint filled herein." The petitioner, the Southern Railway Company, duly executed, tendered, and filed a proper bond with the petition, which was approved by the judge, who ordered that the action be removed according to the prayer of the petitioner. To this order the defendant excepted and appealed to this court.

Craig, Martin & Winston, for appellant.

Moore & Rollins, for appellee.

WALKER J. (after stating the case).

This is an action in tort for causing the death of the plaintiff's intestate by negligence. The defendant the Southern Railway Company was the master, and its codefendants servants of that corporation, and it is alleged that as such they owed a duty to the intestate, which they disregarded and neglected, and that their joint omission of that duty proximately resulted in his death whereas if they had, while acting in co-operation, and in a careful manner, as they should have done, in the discharge of the duty, each bestowing upon it that degree of care required of and due from him or it, the injury and death would not have occurred. This is the substance of the cause of action, which, being for a tort, may be made joint, by uniting all the tort-feasors as defendants in one action, or several, by suing each in a separate action. The plaintiff, or party aggrieved by the wrong, may make it joint or several at his election; and it is not open to the wrongdoer to complain of the election so made, or to dictate how he shall make his choice. If the injured party chooses to sue the wrongdoers jointly, he thereby declares that the tort shall be joint, and the law so regards it, without listening to or even hearing from the wrongdoer. And so it is when he sues them separately. His election finally determines what shall be the character of the tort, whether joint or several. This principle has controlled the courts in deciding upon applications for the removal of causes from the state to the federal courts, whenever it becomes necessary to inquire whether a separable controversy is presented as between the plaintiff and the nonresident defendant, or opposite party of diverse citizenship. It has been well expressed by Mr. Justice Gray in Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed. 528: "As this court has repeatedly affirmed, not only in cases of joint contracts, but in actions for torts, which might have been brought against all or against any one of the defendants, 'separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings" D'--citing Railroad v. Ide, 114 U.S. 52, 5 S.Ct. 735, 29 L.Ed. 63; Pirie v. Tvedt, 115 U.S. 41, 5 S.Ct. 1034, 1161, 29 L.Ed. 331; Sloane v. Anderson, 117 U.S. 275, 6 S.Ct. 730, 29 L.Ed. 899; Little v. Giles, 118 U.S. 596, 7 S.Ct. 32, 30 L.Ed. 269; Thorn Wire Hedge Co. v. Fuller, 122 U.S. 535, 7 S.Ct. 1265, 30 L.Ed. 1235. A case much like this and certainly sufficiently like it in principle to control its decision is Pirie v. Tvedt, 115 U.S. 41, 5 S.Ct. 1034, 1161, 29 L.Ed. 331, in which the plaintiff sued the defendants for malicious prosecution, and one of the latter sought to remove the case as to him to the federal court. In respect to his right to do so the court said: "There is here, according to the complaint, but a single cause of action, and that is the alleged malicious prosecution of the plaintiffs by all the defendants acting in concert. The cause of action is several as well as joint, and the plaintiffs might have sued each defendant separately or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this the defendants are not permitted to object. The...