Opinion
13415
May 27, 1932.
Before DENNIS, J., Marlboro, March, 1931. Affirmed.
Action by Elizabeth Cannady as administratrix of the estate of Less Cannady against Atlantic Coast Line Railroad Company and others. From an order refusing a motion for removal of cause to Federal Court, named defendant appeals.
The complaint and order directed to be reported are as follows:
COMPLAINTPlaintiff above named complaining of the above-named defendants would respectfully show to the Court:
1. That the plaintiff, Elizabeth Cannady, is the duly appointed and qualified administratrix of the estate of Less Cannady, deceased, and in such representative capacity brings this action for the benefit of herself, as the widow, and Annie May Cannady, Corinne Cannady, Maggie Cannady, Less Cannady, and Otis Cannady, the children of Less Cannady, Sr., deceased.
2. That the defendant Atlantic Coast Line Railroad Company is a corporation duly chartered and existing under and by virtue of the laws of the State of Virginia; operates a railroad transportation system in the county and State aforesaid, between Bennettsville, S.C. and Tatum, S.C. and there maintains offices and depots, and has servants and employees.
3. The defendants V. Baldwin and H.E. Jones are residents and citizens of the State of South Carolina and at the times hereinafter mentioned were in the employ of the Atlantic Coast Line Railroad Company as locomotive engineer and locomotive fireman, respectively, and in charge of and operating an engine and train of cars over the railroad of the defendant corporation as hereinafter set forth.
4. That heretofore on or about the 7th day of December, 1929, about 6:30 o'clock in the afternoon, plaintiff's intestate, Less Cannady, was traveling with his young son, James Eddy Cannady, in a wagon drawn by two mules along the public road in the county and State aforesaid leading from the Bennettsville and Tatum road in a general northerly direction to the Bennettsville and Adamsville road, and which public road crosses the tracks of the defendant corporation at a point about two and one-half miles from Bennettsville and some five hundred yards north of the Bennettsville Tatum public highway. As plaintiff's intestate approached this crossing traveling along said highway in a northerly direction, a train of cars owned and operated by defendant corporation and in charge of V. Baldwin, as engineer, and H.E. Jones, as fireman, traveling at a high, reckless, and unnecessarily rapid and dangerous speed, approached the said crossing from the east. Such engine and train were so traveling without being sufficiently under proper control, did not give any warning or signals, as required by statute, for a crossing, and gave no sufficient warning of its approach, and maintained no watch or lookout for the crossing, and failed to provide any other safeguard of any kind, and collided with the mule-drawn wagon in which plaintiff's intestate was traveling, demolished it, killed the mules, and grievously wounded plaintiff's intestate to such extent that he then and there died.
5. That the said defendant Atlantic Coast Line Railroad Company, by and through its officers, agents, and servants, V. Baldwin and H.E. Jones, was negligent, wanton, and willful in the following particulars, viz.:
(a) In establishing and maintaining a dangerous crossing at a point where a public highway passed over and crossed its railroad tracks, and where large numbers of the public were accustomed to cross.
(b) In running and operating its trains at a high, excessive, dangerous, and unreasonable rate of speed at the time and under the surroundings and circumstances existing when plaintiff's intestate was struck and killed.
(c) In failing to keep the engine and train of cars under proper control.
(d) In failing to give the signal by bell or whistle, as required by statute.
(e) In failing to stop the said train in time to avoid striking said wagon in which plaintiff's intestate was traveling.
(f) In failing to keep any lookout to sufficiently watch and care for the traveling public and to give notice of the train's approach.
(g) In failing to observe the approach of plaintiff's intestate in time to stop the engine and train of cars before striking the wagon in which plaintiff's intestate was traveling.
6. That the defendant, V. Baldwin, in the employ of the defendant corporation while operating his engine and train of cars before referred to, was negligent, reckless, wanton, and willful in the following particulars:
(a) In running and operating his train at a high, excessive, dangerous, and unreasonable rate of speed at the time and under the surroundings and circumstances existing when plaintiff's intestate was struck and killed.
(b) In failing to keep the engine and train of cars under proper control.
(c) In failing to give the signal by bell or whistle, as required by statute.
(d) In failing to stop the said train in time to avoid striking said wagon in which plaintiff's intestate was traveling.
(e) In failing to keep any lookout to sufficiently watch and care for the traveling public and to give notice of the train's approach.
(f) In failing to observe the approach of plaintiff's intestate in time to stop the engine and train of cars before striking the wagon in which plaintiff's intestate was traveling.
7. That the defendant, H.E. Jones, in the employ of the defendant corporation, as fireman, on the engine and train of cars, was negligent, reckless, wanton, and willful in the following particulars:
(a) In failing to give the signal bell or whistle, as required by statute.
(b) In failing to keep any lookout to sufficiently watch and care for the traveling public and to give notice of the train's approach.
(c) In failing to observe the approach of plaintiff's in testate in time to stop the engine and train of cars before striking the wagon in which plaintiff's intestate was traveling.
8. That the defendants Atlantic Coast Line Railroad Company, H.E. Jones, and V. Baldwin, were, in the particulars hereinbefore alleged, jointly and concurrently negligent, reckless, wanton, and willful, and, by reason of their joint and concurrent negligence, recklessness, wantonness, and willfulness, caused the collision and accident resulting in the death of the said Less Cannady, all to the great damage of the plaintiff in the sum of $10,000.00.
Wherefore plaintiff demands judgment against the defendants in the sum of $10,000.00, together with the costs and disbursements of this action.
ORDER OF JUDGE E.C. DENNISThis cause comes before me on petition and notice wherein in and whereby the defendant Atlantic Coast Line Railroad Company demands a removal to the District Court of the United States for the Eastern District of South Carolina. This defendant claims that the complaint sets up a separable controversy. The motion was heard and so marked, while presiding in Marlboro County.
Whether a separable controversy is presented or not by the pleadings is a matter for determination by the State Courts. The complaint here in my opinion does not present a separable controversy.
The petition of the Atlantic Coast Line Railroad Company is denied. The case must be tried in the jurisdiction in which it is originally brought.
And it is so ordered.
Mr. M.C. Woods, for appellant, cites: In construing a statute the cardinal rule is to get legislative intent: 67 S.C. 312; 28 S.C. 521; 49 L.Ed., 363; 110 S.C. 505; 145 S.C. 41; 140 S.C. 260; 138 S.E., 803. A statute imposing a penalty cannot be extended to include others than those designated: 119 N.W., 717; 149 N.C. 366; 63 S.E., 116; 85 N.C. 542; 168 N.C. 103; 82 S.E., 963; 145 N.C. 495; 59 S.E., 570. Decision of issue of fact is for Federal Court and issues of law are for State Court: 156 S.C. 92; 167 Fed., 675. As to removal of action to Federal Court where nonresident is party defendant: 161 S.C. 498; 232 U.S. 146; 58 L.Ed., 544; 88 Fed., 1; 259 Fed., 968; 182 Fed., 276; 131 Fed., 985; 151 Fed., 891; 112 U.S. 192; 28 L.Ed., 693; 121 S.C. 461.
Messrs. Tison Miller, for respondent, cite: Statutory liability is on fireman and engineer and they are jointly and severally liable with master: 70 L.Ed., 965; 52 S.C. 228; 1 C.J., 951; 18 L.R.A., 771. Common law wrongs prevent controversy being separable: 110 S.C. 70; 96 S.E., 292; 260 F., 883.
May 27, 1932. The opinion of the Court was delivered by
This action by Elizabeth Cannady, as administratrix of the estate of Less Cannady, deceased, against the defendants, Atlantic Coast Line Railroad Company, V. Baldwin, and H.E. Jones, was commenced in the Court of Common Pleas for Marlboro County, March 31, 1931, for the purpose of recovering damages against the defendants for the alleged wrongful death of the said Less Cannady. On April 18, 1931, the defendant Atlantic Coast Line Railroad Company served upon the plaintiff a notice of intention to file a petition for the removal of the cause to the United States District Court for the Eastern District of South Carolina and at the same time filed in the office of the Clerk of Court for Marlboro County a petition for removal and a bond executed in due form for that purpose. Within due time, copies of the summons, complaint, notice, petition, and bond, duly certified by the Clerk of the said Court of Marlboro County, were filed in the District Court of the United States for the Eastern District of South Carolina. Thereafter, in accordance with the said notice, motion for an order removing the case to the said United States District Court was made and heard before Hon. E.C. Dennis, Circuit Judge, who, after due consideration, refused to grant the motion for removal and issued an order accordingly. The motion for removal to the United States District Court was based upon the alleged ground that the complaint sets up a separable controversy. From the order of Judge Dennis refusing the motion for removal, the defendant Atlantic Coast Line Railroad Company has appealed to this Court.
Upon due consideration of the allegations of the complaint and the motion papers, we are satisfied that Judge Dennis issued the proper order in the cause, and for the reasons stated in his said order the exceptions are overruled and the order affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM concur.
I concur in the opinion of Mr. Justice Carter upon the strength of the cases of Powell v. Southern Railway Co., 110 S.C. 70, 96 S.E., 292, and Atlantic Coast Line Ry. Co. v. Feaster (D.C.), 260 F., 881, 882. The Powell case is quoted and relied on in the opinion in the Feaster case, delivered by Judge H.A.M. Smith, presiding in the United States District Court for the District of South Carolina. The syllabus to that case succinctly states the issue and the conclusion of the Court: "An action brought by an employee in a South Carolina State Court against a Virginia railroad corporation and another for personal injury claimed to have been inflicted through the joint negligence of the defendants is not removable, in view of the decisions of the South Carolina Supreme Court, because the liability of the railroad company would be governed by the South Carolina Employers' Liability Act, while the responsibility of the individual defendant would be measured by the common law; the holding of the local Court being that, although a different rule of law would be applied as measuring the liability of the two defendants, that would not be sufficient to change the general nature of the tort."
Judge Smith, in his opinion, said:
"The position of the Atlantic Coast Line Railroad Company is that the statute known as the Employers' Liability Act, passed by the State of South Carolina, on the 14th day of April, 1916, supersedes all law relating to the relations of employer and employee in a case such as this, where the employer is a common carrier by railroad, and the right of the employee to recover depends entirely upon the terms of that Act; whereas, his right to recover as against the other defendant, R.S. Jones, depends entirely upon the common law, making both employer and employee liable to the party injured in a case of injury caused by joint negligence; for this Court cannot in the same cause administer a different rule as to liability to different defendants, the one being the liability imposed by the common law and the other being the rule as to liability imposed by the Employers' Liability Act.
"There are some aspects in which this position would appear to be logical and reasonable and there are decisions of respectable Courts supporting it; but the Supreme Court of South Carolina, in the case of Powell v. Southern Railway Company, 110 S.C. 70, 96 S.E., 292, decided on the 15th of April, 1918, has decided explicitly that, although a railway company may be liable as an employer under the Act of Congress entitled `Employers' Liability Act' (Act April 22, 1908, c. 149, 65 [45 U.S.C.A., §§ 51-59]), the language of the South Carolina statute being the same, while the other defendant in that case may be liable under common law, yet that where the complaint alleged that the transaction was one and that both the defendants had concurrent part in the transaction, it did not matter that the law casts upon each defendant a different duty thereabout; that that consideration does not separate them in the performance of the same Act, and that the complainant had a right to allege the existence of a joint tort, and to recover upon the tort as a joint one, although a different measure of liability might be imposed by the Court upon the separate defendants; that although a different rule of law would be applied as measuring the liability of the two separate defendants, that would not be sufficient to change the general character of the tort and convert the right against each defendant into a separable one."
The movant in the present case contends that the statute law of this State, commonly called the Crossing Statute, imposes upon the railroad liability for "all damages" arising from a collision at a crossing; therefore, no sort of liability can attach to the agents and servants of the railroad who are joined with it in the action. We cannot concur in this view. We think the term "all damages" referred to the nature and extent of the damages, or injuries, and it was not intended to say that the railroad alone should be responsible for such damages. The cases of Jenkins v. Ry. Co., 130 S.C. 180, 125 S.E., 912, and Johnson v. Ry. Co., 142 S.C. 125, 140 S.E., 443, are authority for saying that, where the master is held liable in an action based on the tort of the servant, the master has a right of action to recover from the servant the damages he has been called to pay. If the views urged by the movant were correct, the master, if a railroad corporation, would be deprived of this right.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE STABLER concur.