Riser v. Southern Ry. Co.

• Decision Date: 27 November 1903
• Citation: 46 S.E. 47,67 S.C. 419
• Parties: RISER v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

46 S.E. 47

67 S.C. 419

RISER v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

November 27, 1903

Appeal from Common Pleas Circuit Court of Newberry County; Izlar Special Judge.

Action by Luther A. Riser against the Southern Railway Company and Marion Rich. Judgment for plaintiff. Defendants appeal. Affirmed.

The following are defendants' exceptions other than those stated in the opinion:

"First. Motion to Require Election. 1. Error of the presiding judge in overruling defendant's motion to require plaintiff to elect upon which cause of action stated in the complaint he would proceed to trial, namely, the cause of action based upon ordinary negligence or that based upon willful tort. These causes of action are separate and distinct from and inconsistent with each other. The act of 1898 (22 St. at Large, p. 693) relieves plaintiff from election only where the acts of negligence or other wrongs are several acts, and where they cause or contribute to the injury. It is impossible that one act can be both negligently and willfully done, thus making of one act several distinct separate, and inconsistent acts. It is equally impossible that an act negligently done should cause or contribute with the same act willfully done to the injury complained of, or vice versa.

Second. Demurrer to Complaint. 2. Error of the presiding judge in overruling the defendant's demurrer to the complaint, which was as follows: The defendant, Southern Railroad Company, demurs to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, in that the action is based upon the alleged joint and concurrent tort of the railway company and its conductor. The facts alleged in the complaint show that the injury was the result solely of the negligence of the conductor, for which in a proper action the railway company may be held liable under the principle of respondeat superior, but which does not constitute a case of joint and concurrent tort.

Third. Objections to the Jurisdiction. 3. Error of the presiding judge in overruling the objections of the defendant to the jurisdiction of the court, and in refusing the defendant's motion to remove the case to the United States Circuit Court; the grounds of said objection and motion being as follows:

'(1) That the said defendant is a nonresident of the state in which said suit is brought, to wit, the state of South Carolina, but is a corporation under the laws of the state of Virginia; that the matter and amount in dispute in said suit exceeds, exclusive of interest and costs, the sum or value of $2,000; that the said suit is of a civil nature, being an action for $15,000 for personal injuries to the plaintiff caused on the 26th of September 1901.

(2) That prior to the time when the defendant was required by the laws of South Carolina to answer or plead to the complaint served upon defendant on January 17, 1902, to wit on the 6th day of February, 1902, the defendant filed with the clerk of the court of common pleas for Newberry county South Carolina, its petition for the removal of said cause to the Circuit Court of the United States for the District of South Carolina, setting out the matters and things above set forth and more fully appearing in the said petition, which is now on file with the clerk of this court, and reference to which is hereby made as constituting a part hereof; that the defendant at the same time offered therewith and caused to be filed with the said clerk a bond with good and sufficient surety for its entering in said Circuit Court of the United States for the District of South Carolina on the first day of its next session a copy of the record in this suit, and for paying all costs that may be awarded by said Circuit Court if said court shall hold that this suit was wrongfully or improperly removed thereto.

(3) That thereafter, to wit, on February 6, 1902, before the time for answering said complaint expired, the defendant served its answer upon the plaintiff's attorneys, and procured a certified copy of the record in said cause to be filed with the clerk of the Circuit Court of the United States aforesaid.

(4) That the defendant is advised that it is the duty of this court, when said petition and bond have been filed, to proceed no further with the cause; that this court is without jurisdiction to pass any order or render any judgment therein.

(5) That to proceed with the trial of this cause under the circumstances will deprive this defendant of a right guarantied by the Constitution and laws of the United States, the right of removal of this cause to the Circuit Court of the United States under section 639 et seq., Rev. St. U.S., and acts of Congress amendatory thereof [U. S. Comp. St. 1901, p. 520], and Const. U.S. art. 3, § 2.

(6) The complaint states a separable, and therefore removable, case, so far as the Southern Railway Company is concerned. The facts alleged present a case where a master is liable only by reason of the sole negligence of a servant, in which the master has had no participation. The tort is that of the servant; the liability of the master is imputed by law. There is therefore no joint tort stated.'

4. Error of the presiding judge in holding: 'If it has been removed to the United States court, and Judge Simonton sent it back, it is properly before this court, and I overrule the motion.' The error consisting in his honor being controlled by the decision of Judge Simonton, whereas the defendant was entitled to the individual judgment of his honor upon the question, uninfluenced by Judge Simonton's ruling.

5. Error of the presiding judge in holding: 'It cannot be made now. Having been made over and having been sent back, it cannot be made now' (referring to the motion to remove the cause). Judge Simonton having granted the motion to remand, from which no appeal lies, the only mode of securing a final decision of the question was to renew the motion in the state court to remove the cause, and to appeal from the ruling therein.

6. Error of the presiding judge in holding that the court of common pleas for Newberry county had jurisdiction to hear and determine the cause.

Fifth. Motion for Nonsuit. 10. Error of the presiding judge in not sustaining the first ground of the motion for nonsuit, which was as follows: 'The complaint alleges that the plaintiff's injuries were caused by the joint and concurrent tort of the defendants. The evidence does not tend to sustain this allegation. On the contrary, if it tends to show any negligence, it is the negligence solely of the defendant Rich, for which in a proper action the defendant company may be held liable, but which does not make out a case of joint and concurrent tort.'

11. Error of the presiding judge in not sustaining the second ground of the motion for nonsuit, which was as follows: 'The plaintiff having alleged a joint and concurrent tort of the defendants, the defendant Southern Railway Company, a foreign corporation, has been deprived of the right to remove this cause to the United States court. He should be required to prove the facts so alleged. To allow him to proceed in the state court without some evidence of this fact would deprive the defendant of a substantial right guarantied by the Constitution and laws of the United States.'

12. Error of the presiding judge in not sustaining the third ground of the motion for nonsuit, which was as follows: 'To allow the plaintiff, after alleging a joint and concurrent tort by a railroad company and one of its employés, to recover without proof of such joint and concurrent tort, but simply on proof of a negligent act of the employé, would deprive the company of its property without due process of law, contrary to amendment 14 of the Constitution of United States, for this reason: it would deprive the company of the right of reimbursement from the defaulting servant, which would otherwise exist.'

13. Error of the presiding judge in not sustaining the fourth ground of the motion for nonsuit, which was as follows: 'A master cannot be held to be a joint tort feasor with a servant in a willful or reckless tort calling for punitive damages unless he has authorized, directed, participated in, or ratified the same.'

Sixth. The Judge's Charge. *** 17. Error of the presiding judge in refusing the defendant's first request to charge, which contained a correct proposition of law applicable to the case, as follows: 'The plaintiff having alleged a joint and concurrent tort of the defendants, the defendant Southern Railway Company, a foreign corporation, has thereby been deprived of the right existing under other circumstances of removing this cause to the United States court. To sustain this action he must, therefore, prove that the acts complained of were the joint and concurrent negligence of the defendants.'

18. Error of the presiding judge in refusing the defendant's second request to charge, which contained a correct proposition of law applicable to the case, as follows: 'The negligence of an employé, for which, and on which account only, the employer is liable, is not the joint and concurrent negligence of the employer and employé.'

19. Error of the presiding judge in refusing the defendant's third request to charge, which contained a correct proposition of law applicable to the case, as follows: 'To constitute a joint and concurrent tort on the part of employer and employé, it must appear that each had a direct share in such tort. The liability of the employer by reason of his relation to the employé does not make out a case of joint and concurrent tort.'

20. Error of the presiding judge in refusing the defendant's fourth request to charge, which contained a correct proposition of law applicable to the case, as follows: 'To

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