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

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Rainey, Fant & Horton, Greenville, S. C., for defendants
• Citation: 256 F. Supp. 282
• 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.
• Docket Number: Civ. A. No. 66-115.
• Decision Date: 21 July 1966

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.

256 F. Supp. 283

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

256 F. Supp. 284

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

256 F. Supp. 285

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...