Jacks v. Torrington Company, Civ. A. No. 66-115.

• Decision Date: 21 July 1966
• Docket Number: Civ. A. No. 66-115.
• Citation: 256 F. Supp. 282
• Court: U.S. District Court — District of South Carolina
• Parties: James R. JACKS and Erskine A. Jacks, Partners, doing business as Jacks Dairy, Plaintiffs, v. The TORRINGTON COMPANY, Inc., a corporation, and Robert S. Wassung, Defendants.

256 F. Supp. 282

James R. JACKS and Erskine A. Jacks, Partners, doing business as Jacks Dairy, Plaintiffs, v. The TORRINGTON COMPANY, Inc., a corporation, and Robert S. Wassung, Defendants.

Civ. A. No. 66-115.

United States District Court D. South Carolina, Greenville Division.

July 21, 1966.

Thomas A. Babb, Laurens, S. C., William T. Jones, Greenwood, S. C., and William E. Chandler, Jr., Greenville, S. C., for plaintiffs.

Rainey, Fant & Horton, Greenville, S. C., for defendants.

HEMPHILL, District Judge.

The interesting chronology of events is here complemented by the proposed change in the pleading. After defendants had attacked the original complaint in petition for removal and motions plaintiffs, for the first time, seek to amend. This court expressed its purpose to allow the amendment under Rule 15(a), Federal Rules of Civil Procedure. Plaintiffs have not questioned right of removal, based on proper jurisdiction, existed if plaintiffs had sued Torrington alone. Plaintiff contended, however, the original complaint alleged against joint tort feasors. The court first examines that complaint.

In paragraph 6 of the original complaint plaintiff, complaining of pollution to North Creek,¹ states the water was of clear and wholesome qualities "except for its pollution by the acts of defendants". Thereafter in paragraphs 7, 8, 9, 10, 11, and 12 the target is exclusively Torrington, except for an allegation that Wassung as a "responsible representation of defendant company * * * negligently and carelessly delayed in reporting the matter called to his attention to the defendant company until after much harm and injury to the cattle of plaintiff's dairy herd. * * *" Paragraph 13 alleges negligence and carelessness on part of Wassung, and negligence, carelessness, recklessness, willfulness and wantonness on the part of Torrington, seeks $92,030.00 actual damages of both, $100,000 additional punitive damages of Torrington. It will thus be seen that plaintiffs charge only Torrington with willfully maintaining a nuisance and polluting the stream.²

Para. 11. "* * * called the matter to the attention of * * * Wassung, * * * but said defendant negligently and carelessly delayed reporting the matter to defendant company * * *." Para. 13. "* * * as a direct and proximate result of the negligence and carelessness of * * * Wassung and * * *." PRAYER. Only actual damages are demanded against Wassung.

Plaintiffs' motion(s) of March 15, 1966 seeking (1) leave to amend the complaint, and (2) remand of the cause to the Court of Common Pleas for Laurens County, South Carolina,³ precipitated hearing at Greenville April 1, 1966. Previously, seeking removal, on February 14, 1966 defendants had filed Petition and Bond, alleging in the former that the complaint, if it alleged a cause against defendant Wassung, pursued one entirely separate and independent from the claim which the plaintiffs assert against Torrington; further, that Wassung was "improperly and fraudulently joined as a defendant in the action for the sole purpose of attempting to prevent the Petitioner, the Torrington Company, Inc., from removing the action. * * *" On the same day defendant Torrington noticed motions: (1) for an order requiring that the complaint be made more definite and certain by stating separately claims for relief against Torrington and Wassung; or (2) if that motion were denied, for an order stating certain complaint matter accused as irrelevant, redundant, immaterial, etc.

Generally the right of removal is decided by the pleadings, viewed as of the time when the petition for removal is filed.⁴ Therefore, if defendants were entitled to removal on February 14, 1966, an amendment allowed to plaintiff at a later date would not force remand.⁵ It therefore appears defendants' rights of removal under applicable statute⁶ is the crux of this proceeding, as the right of removal is purely statutory.

Plaintiffs' claim against Torrington is for creating a nuisance and for negligently, carelessly, recklessly, willfully and wantonly polluting and contaminating a stream passing through plaintiffs' property and seeks separate and independent punitive damages against Torrington alone above and beyond the actual damages otherwise claimed.

Para. 7. "* * * Torrington Company Inc. increased to full production." Para. 8. "* * * said company negligently, carelessly, recklessly willfully and wantonly * * *." Para. 9. "* * * defendant company's pollution and contamination * * * as aforesaid constituted a nuisance." Para. 10. "* * * as a direct and proximate result of defendant company's maintenance of said nuisance and its negligent, careless, reckless willful, and wanton conduct * * * in polluting and contaminating said waters * * *." * * * * Para. 12. "* * * Defendant company gained knowledge * * * Defendant company negligently, carelessly recklessly, willfully, and wantonly continued to pollute * * *." Para. 13. "* * * as a direct and proximate result of the negligence and carelessness of * * * Wassung, and the negligence, carelessness recklessness, willfulness and wantonness of * * * Torrington * * *, all to plaintiffs' damage in the sum of * * * ($92,030.00) Dollars actual damages against both defendants and * * * ($100,000.00) Dollars punitive damages against * * * Torrington * * *." PRAYER. Punitive damages are demanded from Torrington only.

A claim against a party for punitive damages arising from reckless or willful conduct is entirely separate and apart from a claim for actual damages arising from mere negligence.⁷

Where such a separate and independent claim is brought against a defendant who could have established diversity jurisdiction if sued alone, the entire action has previously been held removable in our South Carolina District Courts.⁸

Thus, there being a separate and independent claim or cause of action asserted against Torrington which was removable had Torrington been sued alone, then clearly the action was properly removed under Section 1441(c).

Authorities cited by plaintiffs are not in conflict.⁹ The Forrest and Bagwell cases involved joint and concurrent acts of negligence with the whole amount of damages sought being allegedly due to the concurrent negligence of both. Such is not the situation as between plaintiffs' claims against Wassung and plaintiffs' claims against Torrington.

Defendants also removed upon the ground of improper and fraudulent joinder of Wassung. The issue is one of fraud in a legal sense and in no way involves the integrity of plaintiffs or the professional conduct of their counsel. The issue is, rather, whether the futile joinder of a party against whom no valid claim for relief is stated will be permitted to defeat diversity jurisdiction which would otherwise exist against the remaining defendant.

The complaint against Wassung is set forth in Paragraph 11 of the original complaint:

That beginning in the early part of the year 1963 Plaintiffs became aware of the fact that the cattle of their dairy herds were becoming diseased and poisoned by Defendant company's pollution and contamination of the waters of North Creek, as aforesaid, and they called the matter to the attention of the Defendant, Robert B. Wassung, who held himself out to Plaintiffs as a responsible representative of Defendant company, but said Defendant negligently and carelessly delayed reporting the matter to Defendant company until after much harm and injury to the cattle of Plaintiff's dairy herd had occurred.

Should these allegations not constitute a valid claim for relief against Wassung then he is not a proper party; there is no basis for his joinder; and such a joinder to prevent removal would in law amount to a legal fraud upon the defendants.¹⁰

For a valid claim for relief to lie against Wassung, there must be sufficient allegations to establish a legal duty on the part of Wassung to plaintiffs to report to his company the information they alleged he received and there must be a violation of that legal duty.¹¹

The existence of a legal right and of a legal duty corresponding to such right are essential elements of a cause of action. The cause of action itself cannot exist without the concurrence of a default and of a right and duty.¹²

* * * * * *

However, the mere refusal of a person to do what he is not legally bound to do is not actionable. Those duties which are dictated merely by good morals or by humane considerations are not within the domain of the law. In this respect, it has been held that the duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognizable or enforced by law.¹³

* * * * * *

Like any other employee, the liability of the agent is based on the duty which he himself owes to the third person, and in most jurisdictions now, this duty is recognized as the test of liability, rather than any distinction based upon whether the act is a misfeasance, malfeasance, or nonfeasance. Pursuant to this test of liability, an employee is liable to a third person for injuries resulting from the breach of any duty which the employee owes directly to such third person, and is not liable to a third person for injuries resulting from a breach of duty which the agent owes only or solely to his employer.¹⁴

The fact that Wassung is alleged to be "a responsible representative" of the company imposes no legal duty to the plaintiffs on his part to report to the company information or complaints plaintiffs made to him. Wassung's legal responsibilities were to his employer and created no legal right in the plaintiffs. No facts are alleged imposing any legal duty on the part of Wassung to the plaintiffs to report or transmit any information plaintiffs might see fit to give him regardless of the nature of the information. By way of illustration, suppose plaintiffs gave Wassung false...