Document ykMEw0d53eqE7kkJweK34ORVd

IN TEE DISTRICT COURT OF THE/UNITED STATES ) FOR THE EASTERN DISTRICT OF SOUTH CAROLINA ) -vs- Atlantic Coast Line. Railroad Company and f. A. Fetner, Defendantsi i. } ORDER REMANDING CASS ) TO COURT: OF COMMON ) PLEAS FOR"FLORENCE } COUNTY. )\ i { / 'The plaintiff has made a motion to remand the above en titled case on the ground that the complaint states a joint and several cause of action against the defendants and that there is therefore no separable controversy as to the defendant Atlantic Coast Line Railroad Company. The petition for removal does not state any facts to show that the joinder of the resident defendant Fetner was shorn or fraudulent. The sole question is whether it appears from the face of the complaint that a separable, contro versy is stated as to the non-resident defendant. The complaint substantially alleges that Fetner, the'-l: foreman ana agent of the defendant Atlantic Coast Line Railroad Company, d i r e c t e d a minor, for whose injuries the suit is brought, to do work which he was obviously incapable of doing without injury to himself. This is the gist of the cause of...ac tion. The first position taken by the defendant, the Coast Line, ic that there is.a separable controversy because the responsibility of the Coast Line is implied as -a matter of law from the responsi bility of a principal for the act ox a servant, there being no al legation that'the Coast Line participated in any other way than through the act, of its servant, Fetner, and that the responsibility of the defendant Fetner is for his own act. The precise question was certified to the Supreme Court by the Circuit" Court of Appeals in the case of-Alabama Southern Ry. v. Thompson, 200 U. S. 312, and answered adversely to the contention of the" Coast Line in this case. . ;. _^ The next position of the defendant- Coast Line is that the . act of Fetner, its co-defendant, was a. mere nonfeasance, for which Fetner is not liable and that therefore no cause of action is stated ' against Fetner. It is not necessary to disc-use at any length the distinction between misfeasance and nonfeasance and the liability of. - ' a servant for a mere-act of nonfeasance in failing to perform a duty he owes to the Master and not to a third person, who may be injured ''_nF> o ca by such failure. In this case the allegation is that Fetner, the . resident defendant, ordered the plaintiff to do -work which it was obviously dangerous for him to do., considering his youth and physi- . ... . r*-L cal ability. I do not. think that this is a mere nonfeasance. It o> is a direct positive act that is charged. But aside from this, the o question is really not whether a cause of action is stated against Fetner, but whether there is a controversy which is separable or N8317 joint and several. If no cause of action is stated against; the resident defendant, that would be very persuasive as tending to show- that the joinder -was sham and fraudulent, but not necessarily so. Plaintiffs frequently honestly believe they have a cause of ac tion and the .Courts:.upon demurrer or otherwise .hold .they have no,:., 2- even tho it is finally .held that no cause of action exists. Here the plaintiff hds chosen to alleged that he has a joint and several cause of action against the two defendants. It may he that the State Court will hold that there is no cause'of action against either ox may hold that there is a cause of action against the Coast Line and not against the defendant Fetner. But the decisions i n this.State show that the plaintiff at least has some ground to believe that the State Court would hold the defendant Fetner liable even for acts of nonfeasance. See Sills vs. Southern Ry. Co., 72 S. C., 465. Carter v. A.C.L. RR. Co., 84 S. C., 546. See also Note, 20 A.L.R., pp, 97-- 174, where the whole subject of the liability of servant to third persons, misfeanc',. e tp ^ ) 4*> t - X"`u'i1.i5.-y discussed and the various cases cited. It is not necessary in this case for this Court to decide whether there is a cause of action stated against the resident defend ant or.not. If it was clear that no cause of action at all was stated against the resident defendant, and there was no reasonable basis upon which plaintiff could rest a belief that he had a cause of action ogainst such resident defendant, then this Court -would be justified in such a palpable case in holding that such joinder was fraudulent and sham and could be for no other purpose than to prevent a removal. But in the present state ox the decisions of the Supreme Court of South Carolina and in view of the law as announced in various States (which are referred to in Bote, A.L.R., supra), this Court cannot say,.that the contention that Fetner is liable is palpably without foundation. This whole subject was very recently considered by this Court and the various decisions reviewed in the case of Lyiies v. Standard Oil Go., et nl., 300 Fed. 812. In accordance with tne views announced in that , case, and for the reasons set forth herein, I am of opinion that there is nothing before me sufficient to show that the joinder of Fetner was sham ur fraudulent, and the plaintiff's alleged cause of action is joint and several, and there is therefore no separable controversy. It is therefore O R D E R S D,- that the above entitled case be/.and the same is hereby remanded to the Court of Common Fleas for the County of Florence. Charleston, S. C., October 4, 1934. (S) FREEST F. COCHBAE, U.3.DISTRICT JUDGE.