Document zQBj0xm66XbOJmYZMjM1wayO3

IH THS DISTRICT COURT F THS UNITED STATES FOR -THS EASTERN DISTRICT O? SOUTH CAROLINA F. P.Dime, Plaintiff, -vs- The Texas Company, A. J.Rainwater, A. F.Viooten and L. L.Beasley, Defendants. : ; :' : : ORDER OF REMAND. ; ; : : ; The Plaintiff has Drought an action for unlawful assault against the above named Defendants. He alleges that the three Defendants, Rainwater, Wooten and Beasley committed, the assault - ana that while so doing they were acting as agents of The Texas Company. The Texas Company is a non-resident corporation and has removed the*case from the State Court*to this Court. A motion to remand is made by the Plaintiff. Manifestly there is no fraudulent joinder of the resident Defendants, who, according to the allegations, were so intimately connected with the ultimate facts out of which the controversy grows. ,The Defendant, Texas Company, in the verified Petition for Removal, supported'by affidavits, has asserted that the allega tions of agency -are without foundation in fact. Neither does the Plaintiff file any traverse of the allegations in the Petition. So as we see the proposition to be decided, it must be stated as follows*: Where a plaintiff sues a non-rsident corporation and joins resident defendants who were admittedly connected-with the facts out of which the controversy grows, and the liability cf the non-resident corporation is based on agency alone, does the fact that the agency is disputed by r. strong chow ing. make the joinder fraudulent, or is a separable controversy present, so as to compel removal? We thin': note. The fact that this Court may take the yiew that the case on the present showing may be a doubtful one against the defendant, non-resident corporation, does not go the good faith of.the joinder, but to -;he mrit of the case on trial. The controlling principle of decision is stated in Chicago & Chic- Ry. v. Cockrell: "As no negligent act or omission personal to the railway company was charged, and its liability, like that of the employees was, in effect, predicated upon the alleged negligence of the'latter, the. showing manifestly went to the merits of the action as an entirely and not to the joinder; that is t sey, it indicated that the plaintiff's case was ill founded as to all the defendanto.. plainly., this was not |such a show ing as to engender ox compel the conclusion that the em- -fc :t;- i V i -fb -'i; 4 KE on tdoyeeu were wrongfully brought into a controversy which did -not concern. 'thcjB. Authority fg also found in -the eases of Chesapeake & Ohio nr. v. Cock rell. 233 U. S. 140,, 1.55, 58 L. Ed. 544; Chicago R. I. & Pac. Ry. v* Whiteaker, 232 XJ. S. 421, 425, 60 1. 2d. 3 6 0 ; .Alabama Southern Ry. v. Thompson, 200 U. 3. 206, SIB, 0 L, ,d.:f'441y. and Kraus v. Chicago, E. & 0. R. Co. (C,0.A., 6th. Circuit),, 16 Fd..(2nd) ?S. V: Furthermore a traverse..;of the allegations in the petit ion: for removal is unnecessary where the .allegations of the; petition are insufficient- to warrant h removal. In Chicago ."'etc.,'1 - Ry. v. Whiteaker,-where the attempt was made"-'fo show that the' engineer cbuiLd not have been guilty as charged because he was elsewhere on the train, it is:pointed out'; that .such ayprnient was nothing more than a. denial'of-tie, allegations; made, by the plaintiff, and, therefore-, insufficient to justify the removal of the , case. It' is similarly brought out .in Kraus' v. Chicago, etc,, R,. Co., that the insufficiency of either pleadings or facts make out a cause of action agairs t the non resident fiefendpnt- is, not the test of fraudulent joinder, but, is incident to the trial of the case; and that the right of action in its entirety should be passed upon and decided in the jurisdiction where the action is brought. Kor do we understand that the fact that the liability of the non-resident defendant will depend upon,the two-fold ground of -unlawful assault and agency of the resident de fendants, presents c. separable controversy on the ques tion of the agency alone, tie took this same view in a case foxssejrly before this Court, see Sanders v. Atlantic Coast line 29 Fed. (2nd) 1010. This .seems to be the proper view because the law is' clearly settled that the filing of separate answers by the separate defendants, does not make the controversies necessarily separable so ae to justify removal. Here the answer of the resident defendants will be "not guilty" c.f "justifiable assault'1, while the defense of the non resident defendant will be in addition thereto, "non agency" or "beyond the scope of agency as to the alleged assault." .But this does not make the case, removable- under the direct;ruling of several decisions of the United States Suoteae Court. Here we quote from Lynes v. Stand ard Oil Co., 300 Fed. 815. "The filing of separate answers, tendering separate issues for trial by several defendants sued joint ly in the state court c-n a joint cause of action, does net divide the suit into separate controver- sics, so as to make it removable. A separate de fense may defeat a joint recovery, but it cannot deprive the plaintiff of his right to prosecute his own suit to final determination in his own way, nor does it giye the defendant any right to resovM the suit. Louisville A Kashvllle R. a. Co. v. Idf, JL14 U. S. 52, 5 Sup. Ct. 735, 25 L. 2a. S3; Firis v. T.vedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. 2d. 331; Starin v. Rew York, 115 U. S. 343, 6 Sjsp. Ct. 730, 23 L. Ed. 899; Core v. Final, 117 D. S. /' -- i - ' i 0011418 W0 S; v. cajia: Ot. 7G1 't ---i= . t " h / d Z f 1 Z > l i n i n g Go. Chest " Ci- ^ 3 4 , Ohio v Oixon, Supra: s u p r a ; Weoicer iro r t h e -r oreyo fi so o.f e'"haih '" -- Caroli:..?, to 01 A p r il 20, ISSI. u S.CISfE Icn n m gE ' / [