RIVERS V.BRADLEY.
305
RIVERS v. BRADIJEY et a.L (Cireuit Court, D. Routh Carolina. Deeember 23, 1892.)
1.
REMOVAL OF CAUSES-DIVERSE CITIZENSHIP·
.A dtizen of Massachusetts, who resides with his family in that state most of the year, but OWIlll valuable real estate in South Carolina, where he comQS once a year, or, at the furthl!st, two years, and spends a month, may remove from a South Carolina court to a federal court a suit brought ag::linst hJm by a citizen of South Carolina.
2.
SAME-NoMINAL PARTy-ENGINEER OF A RAILROAD TRAIN.
In an aetir.n by a train hand against the owner of a railroad for personal injuries, the engineer of the train being joined as a defenda.'lt, it was alleged that the injury "as caused by the defective sight and hearing of the engineer, and "by a broken bumper on one of the cars which the ants [plural] had negligt'ntl.v permitted to) remain broken." No facts were olleged showing that it was the duty of the engineer to control the cars, toaee that they were in good repair, or thnt he had any supenision over the train in the capacity of. conductor. Held, that the engineer was a merely nominal party, and the other defendant could remove the cause to a federal court on ahowing diversity of citizenship.. Nelson v. Hennessey, 33 Fed. Rep. 113, followed.
. At Law. Action brought in the court of common pleas for Berke· ley COUJilty, S. C., by Thomas B. Rivers against William L. and one Gaillard, for personal injuries. Defendant Bradley removp(l the ell,use to the United States circuit court. On motion to Denieq. Jervey & Prolean, for the motion. Lord & Burke, opposed. SIMONTON, District Judge. This is a motion to remand. The action began in the court of common pleas for Berkeley county in the state of South Carolina. It was removed into this court upon the petition of the defendant Bradley. There are in fact two petitions for removal, but they will be consolidated. Two grounds are set up: First. That plaintiff is a citizen of South Carolina, and that Bradley, the only real party in int.erest, is a citizen of the state of Massachusetts; that against Gaillard, the other defendant, the complaint sets out no cause of action, and that he is joined as a defendant simply to defeat the jurisdiction of this court. Second. Even if there be a cause of action against Gaillard, the f'omplaint shows a separable controversy between Hrailley and the plaintiff, and so i:; removable. On his motion to remand, plaintiff 1J'averses all the allegations of the petitions. 1. It is admitted that Hradley is a citizen of )Iassachusetts, and resides with his family in that state for the greater part of the yeal; that he owns valuable real estate in the I:lt:ate of South Carolina. upon which is a. comfortable dwelling; and that once a year, or, at furthest, two years, he comes and spends about a month in it. This fact does not make him in any sense a resident of South Carolina, .or deprive him of his right as a citizen of Massachusetts of the privilege of removing a suit into this court. 2.. In determining the first ground for remoyal of the case into thifJ court we must be governed by an inspection of the complaint, assum· v.5oF.no.3-20
306
FEDERAL REPORTER.
voL 53.
ing that its allegations are true. Railroad Co. v. Grayson, 119 U. S. 24:0, 7 Sup. Ct. Rep. 190. Does tM complaint state a cause of action The for damages by plaintiff, against a trainhand ()n a railroad o'Yned by Bradley, who was crushed be· tween and injured because' ofa broken bumper. The complaint alleges that.Bradley is the owner and master of cer· tain phoft,Pha.te works oPerated for the digging, mining,' removing, and shippfug pho$phate rock; that in the prolilecution.of his business a railway and cars propelled by steam are run over.l;1.i.s lands; that Gaillard wM.employed by. Bradley as engmeer, and"was charged with the duty. of operating and controlling the steam engines while hauling traihS of cars, shifting cars, making up trains, and otherwise engaged atand.about the wQrksafol'esaid; that plaintiff was train hand or to Gaillard; .that at the time of the injury to plain· tiff, and for III long time prior thereto, Gaillard was very: deaf, and of quite defective notwithstanding his kn6wledge of this, "Bradley negligently appofuted and kept him. as engineer; that on the 12th April, 1892, while plaintiff was engaged W;b;is .duties as train hand, was crushed between two cars py rpal'lon of the dehearing' o{:<:faillard, and the negligence of Bradley in app6intingand keepinghilnas engineer. The nett,count alleges that the injury was cause\'{ by a broken bumper on one of the cars which the defendants haldnegligently permitted to remain broken. The only allegation against Gaillard is this last: "The injury was caused by a broken bumper on one of the' cars which the defendants [plural] had negligently permitted to remain broken." Nowhere in the complaint is anything stated which would show the duty on the part of Gailla.rd to control the cars, to see that the;r were in proper condition and in good repair, or that he had any supenision over or direction of the train, such asa conductor wonld have. He held the position of.'engineer, and was charged with the duty of operating and controlling the steahl engines while in his other duties being at and abollt the works afo;resaid; Before he can be made responsible, the facts. showing some duty on his part, and the breach of it, must be alleged; that is to say, what his duty was, and that·it was not ob· served.The bald charge that plaintiff was injured by his negligence is simply the statement of a conclusion without any fact to base it llpon. "The allegation in a complaint that the defendant has done . an unlawful.act is a mere statement of a legal conclusion, unless it is accompanied with an allegation' of facts going to make the act in question unlawful." Tompkins v. Railroad Co., 33 8. C. 216, 11 S. E. Rep. 692.80 in Madden v; Railway Co., 35 8. C. 383, 14: S. E. Rep. 713: "Negligence being a tnixed question of law and ,fact; it is not sufficient to allege in general terms that an injury has been'sustained by reason of the' negligence of defendant, but the plaintiff must go on, and allege the facts of s'tlch negligence." . It would seem, therefore, that in this complaint Gaillard has been. made a defendant without words· to charge him,and that he i;; only a nominal party. This brings the cal:le within NelSon v. Hennesl'ley, 33 Fed. Rep. and the right of lll'adley to remove cannot be itnpaired by the joinder of Gaillard as defendant. . The motion to remand is refused.
V. CHAMBERLAIN.
307
BRISENDEN v.CHA.'\ffiERLAIN. (Circuit Court, D. f!louth 1.
December 28, 1892.)
REMOVAL OF CAUSES-STATUTORY RIGHTs-DEA'I'H BY WRONGFUL ACT.
:Section 2 of the jUdiCial'Y act of 1887-88 gives the right of removal from a state to a federal circuit court only when the latter court would have original jurisdiction under the first section. The first section gives the circuit court origh:;al jurisdiction concurrent with the state courts "in all suits of a civil nature at common law ')1' ill eqnity," etc. Held, that the phrase "common law" is here used ill contradistinction to equity, admiralty, and maritime jUrisdiction, and includes all cases involving "legal" rights, whether such rights arise from the settled principles of the common law or are given by statute; and hence a nonresident defendant may remove a suit brought under a state statute giving a right of action for wrongfullY causing death, A receiver of a railroad company, being a citizt'n of another state, may remove an actionbronght againSt him in his official capacity for causing death by wrongful act, although tht' railroad company itself is a citizen of the state in which the action is brought.
lilt
SAME-CITIZENSHIP-RAILROAD RECEIVER.
8.
SAME-RESIDENCE-WHAT CONSTITUTES.
A practicillg lawyer, having an office in New York city, and a borne and family iJ1 the state of New Yor]t, was apppointed receiver of a South Carolilla railway company, and at frequent, though Irregular, illtervals went to South Carolina on business counected with the receivership. He had.no fixed abode there,but. always put up :It an hotel during bis stay, anl'!. returned to New York when his busilless was finished. Held, that he was not a resident of South Carolina, withill the meanillg of the removal of acts, and was entitled to remove a cause brought against him in a court of that .state in hiS official capllClty. One who has filed a petition for the rt'Illoval of a cause in a state court before the expir-J.tion of the time fixed by the. laws of the state or the rules of the> state court to plead or answer, has fulfilled the conditions 0:1' the re'movlllads, anrl tIle fact thRthe files his answer in the state court on the same day with his petition is not a waiver of the right to remove.
4. SAME-PETITION-Tnl. OF FILING-WAIVER.
At Law. Action by Sarah J. Brisenden, administratrix of Henr.r J. Brisenden, deceased, against Daniel H. Chamberlain, receiver of the South Carolina Railway Company, to recover damages for wrongfully causing the death of the said Henry J. Brisenden. On motion to remand. Denied. Melton & Melton, for the motion. Brawley & Barnwall, opposed. SIMONTON, District Judge. l.'his is an action at law, originally brought in the court of common pleas of the state of South Caroliwt sitting in Aiken county. The cause of action was the killing of plaintiff's intestate upon the track of the railway of which the defendant is the receiver. The action was brought under the provisions of section 2183, Gen. St. S. C., enacting for that state what is . commonly known as ."Lord Campbell's Act." The defendant, on the last· day provided by the Code of South Carolina of the period within which he was required to answer or demur to the complaint, filed his petition for removal into this court, accompanied