[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 449 October 4, 1922. The opinion of the Court was delivered by Action for damages on account of the alleged wrongful death of plaintiff's intestate. The defendant Southern Railway Company filed a verified petition, accompanied by bond and supporting affidavit, for the removal of the cause to the District Court of the United States for the Eastern District of South Carolina. From an order of Hon. J.W. De Vore, Circuit Judge., granting the petition for removal, plaintiff appeals. The complaint and the petition for removal will be reported.
The complaint alleges that the defendant Southern Railway Company is a foreign corporation, and the defendant James Harling, a resident of South Carolina; that the plaintiff's intestate, while a passenger, was fatally injured in attempting to board a train of the defendant Souther Railway Company, of which the defendant James Harling was conductor, at Batesburg, S.C. on April 8, 1921; and that such fatal injury "was caused by the joint and concurrent *Page 457 negligent, reckless, wanton, and willful acts and conduct of the defendants" in the particulars therein specified.
The petitioner, Southern Railway Company, averred that the joinder of James Harling, the conductor, was "sham and fraudulent, and without any real intention of prosecuting the claim to judgment against him" — a device for the purpose of depriving petitioner of the right to remove the cause to the federal Court. The 10 exceptions to the order of removal raise but two questions: (1) Whether the facts stated in the petition, considered apart from the pleader's deductions in connection with the allegations of the complaint, justify or rightly lead to the conclusion that the joinder of James Harling was sham and fraudulent; and (2) whether the removal bond filed was good and sufficient.
As to the first question, the law as to the removal of causes is thus stated by the Supreme Court of the United States in the recent case of Wilson v. RepublicIron S. Co., 257 U.S. 92, 42 Sup. Ct., 35,66 L.Ed., 22 (October term, 1921), upon which decision the order of the Circuit Judge was expressly based:
"A civil case, at law or in equity, presenting a controversy between citizens of different states, and involving the requisite jurisdictional amount, is one which may be removed from a state Court into the District Court of the United States by the defendant, if not a resident of the state in which the case is brought (section 28, Jud. Code); and this right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy.Wecker v. National Enameling Stamping Co.,204 U.S. 176, 185, 186, 51 L.Ed., 430, 435, 436,27 Sup. Ct. Rep., 184, 9 Ann. Cas., 757. If. in such a case, a resident defendant is joined, the joinder, although fair upon its face, may be shown by a petition for removal to be only a sham or fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly leading to that conclusion, apart from the pleader's deductions. *Page 458 Chesapeake O.R. Co., v. Cockrell, 232 U.S. 146, 152,58 L.Ed., 544, 547, 34, Sup. Ct. Rep., 278. The petition must be verified (section 29, Jud. Code), and its statements must be taken by the state Court as true (Illinois C.R. Co.v. Sheegog, 215 U.S. 308, 316, 54 L.Ed., 208, 211,30 Sup. Ct. Rep., 101). If a removal is effected, the plaintiff may by a motion to remand, plea, or answer take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the District Court (Stone v. South Carolina, 117 U.S. 430, 432,29 L.Ed., 962, 963, 6 Sup. Ct. Rep., 799; Chicago R.I. P.R. Co. v. Dowell, 229 U.S. 102, 113, 57, L.L. Ed., 1090, 1095, 33 Sup., Ct. Rep., 684; Chesapeake O.R. Co., v.Cockrell, supra, pp. 152, 154), and, at the hearing, the petitioning defendant must take and carry the burden of proof, he being the actor in the removal proceeding (Carsonv. Dunham, 121 U.S. 421, 425, 426, 30 L.Ed., 992-994,7 Sup. Ct. Rep., 1030)."
In connection with that statement the following expression by Judge Adams in Donovan v. Wells Fargo Co., 169 Fed., 363, 94 C.C.A., 609, 22 L.R.A. (N.S.), 1250, is more or less pertinent to the present inquiry:
"When the right of removal is made to depend upon the existence of certain facts they must be taken by the state Court to be true as averred in the petition. If it is desired to controvert such facts or any of them, the plaintiff must make an issue with respect to them in the Federal Court and that issue must be tried in that Court. State v. South Carolina;Carson v. Hyatt; Burlington, C.R. N.R. Co. v.Dunn; Crehore v. Ohio, M.R. Co., supra; Chesapeake O.R. Co. v. McCabe, 213 U.S. 207, 53 L.Ed., 765,29 Sup. Ct. Rep., 430; St Louis Southwestern R. Co. v.Adams, 87 Ark. 136, 112 S.W. 186. If the state Court refuses to make the order of removal on the showing made by the face of the record, the defendant may, nevertheless, *Page 459 within a prescribed time, enter a copy of the record as it stood, on the filing of the petition, in the proper federal Court, and have the cause docketed there. Thereupon the latter Court is required to proceed in the exercise of the jurisdiction lost by the state Court upon the filing of the petition and bond with it. Baltimore O.R. Co., v.Koontz, 104 U.S. 5, 26 L.Ed., 643; Burlington, C.A. N.R. Co. v. Dunn, supra."
In the light of the foregoing summary of principles we were at first inclined to approve the view of the learned Circuit Judge that the showing made by the petitioner in this case presented an issue of fact properly determinable by the Federal Court alone, and to affirm the order appealed from upon that ground. But a more careful consideration of the question actually presented for decision has constrained us to reach a different conclusion. The sole issue for determination by the State Court is "a question of law only; whether, assuming the facts stated in the petition to be true, the face of the record discloses a removable cause under the law." Donovan v. Wells Fargo Co., supra.
Proceeding to the consideration of the concrete question, does the petition state facts which warrant the conclusion that the joinder of the defendant Harling was sham and fraudulent? The able counsel for petitioner concedes that if proper foundation exists for a joinder, the motive of the plaintiff in joining the nonresident defendant is immaterial (Clark v. Am. Ag. Chem. Co., 111 S.C. 230,97 S.E. 705; Dishon v. Cincinnati, N.O. T.R. Co., 133 Fed. 471, 66 C.C.A., 345; Charman v. Lake Erie W.R.Co. (C.C.), 105, Fed., 449); and that the averments of the petition for removal must be more than a mere traverse of the allegations of the complaint (Southern Ry. Co. v. Lloyd,239 U.S. 496, 36 Sup. Ct., 210, 60 L.Ed., 402; Chesapeake O.R. Co. v. Cockrell, 232 U.S. 146,34 Sup. Ct., 278, 58 L.Ed., 544). *Page 460
It is likewise clear that for the purpose of this inquiry the statements contained in the petition, averring that the joinder was sham, pretensive, and fraudulent, must be regarded merely as the pleader's deductions or legal conclusions form the facts stated. Wilson v.Republic Iron Steel Co., supra. No contention is made that the complaint states a separable controversy, or that the joinder of the two defendants, master and servant, charged with jointly causing a wrongful death by concurring acts of negligence and misconduct, is not fair and legitimate upon its face. Ellis v. Railway Co., 72 S.C. 465,52 S.E., 228, 2 L.R.A. (N.S.), 378; Carter Harrisv. Railroad, 84 S.C. 546, 66 S.E., 997; Clark v. AmericanAgri. Chem. Co., 111 S.C. 230, 97 S.E., 705; Powersv. Chesapeake O.R. Co., 169 U.S. 92, 18 Sup., Ct., 264, 42 L.Ed., 673; Southern Ry. Co. v. Carson,194 U.S. 136, 24 Sup. Ct., 609, 48 L.Ed., 907; Alabama G.S.R. Co., v. Thompson, 200 U.S. 206, 26 Sup. Ct., 161,50 L.Ed., 441, 4 Ann. Cas., 1147; Cincinnati, N.O. T.P.R. Co., v. Bohon, 200 U.S. 221, 26 Sup. Ct., 166,50 L.Ed., 448, 4 Ann. Cas., 1152; Wecker v. NationalEnameling Stamping Co., 204 U.S. 176,27 Sup. Ct., 184, 51 L.Ed., 430, 9 Ann. Cas., 757; Shane v. ButteElectric R. Co. (C.C.), 150 Fed., 801; Trivette v. RailroadCo., 212 Fed., 641, 129 C.C.A., 177.
In passing upon the petitioner's specific contention as to the force and effect of the facts relied upon to sustain the right of removal, there are certain uncontroverted allegations of fact that should be borne in mind. It is not disputed that the fatal injury to plaintiff's intestate was sustained at the time and at the station mentioned in the complaint; that said intestate was a passenger of the defendant railway company; that he was injured in attempting to board one of the defendant railway company's passenger trains; that the defendant Harling was in the employ of his codefendant as a conductor; that he was in *Page 461 charge as conductor of the particular train plaintiff's intestate was attempting to board when injured; that as conductor he had announced that the train would stop 20 minutes for supper; and that after stopping for 25 minutes at the station he announced to passengers the starting of the train, and gave the signal to the engineer that put the train in motion. To eliminate the defendant Harling from this scene in which he was indubitably an actor, petitioner relies upon the certain allegations of fact in the petition. In the language of petitioner's counsel those allegations, taken as true, show:
"That John Bell Towill, plaintiff's intestate, a resident of Batesburg and familiar with the station premises and the movements of the trains of the Southern Railway Company, was attempting to board a moving train on the side opposite the passenger landing and station, out of sight of the conductor James N. Harling, who had no knowledge of his presence on the station premises and at a place at which passengers were not invited or expected to enter the train."
Assuming those facts to be true, it is argued that Harling, the conductor, owed no duty to the plaintiff's intestate, and could have "no real connection with the controversy" within the meaning of the rule applied by the federal courts.
There are obvious difficulties in accepting without reservation the conclusion that in the circumstances indicated Harling, the conductor, owed no legal duty to plaintiff's intestate. As the employee of a common carrier of passengers the law imposed upon him as the representatives of his principal the duty of exercising the highest degree of care to safeguard the persons of passengers desiring to take passage upon the train in his charge. Even granting that Towill undertook to board his train out of his sight and without his knowledge at a point a passenger was not expected or invited to enter, it is entirely possible to conceive of facts and conditions having to do with this particular *Page 462 time, place, and occasion, provable under the allegations of the complaint, which might have imposed upon the conductor the duty to know and see; that is, the facts alleged by petitioner cannot be said wholly to exclude, within the purview of the complaint, the legal liability of the conductor.
But even if those facts, assumed to be true, were sufficient to exculpate the conductor entirely from legal liability, it does not follow that his joinder as a defendant was fraudulent within the meaning of the law controlling the removal of causes. A mere traverse or denial of the allegations of the complaint, if accepted as true, would equally exonerate the defendant from liability. The correct test, as we apprehend, is whether the facts alleged in the petition for removal, if assumed to be true, establish that the resident defendant had no such participation in any of the alleged wrongful conduct charged against the two defendants jointly as would afford a reasonable basis of fact for connecting him in good faith with the injury as a tort feasor. Applying that test to the case at bar, it is apparent that the facts set out in the petition do not exclude the defendant Harling from participation in the alleged delict nor sever his connection in point of fact with the plaintiff's cause of action. On the contrary, those facts establish that Harling was responsible as conductor for the movement of the train which is alleged to have caused the injury. If there was any delict, it is difficult to see how Harling can be absolved from participation therein. If there is no foundation in fact for a cause of action against Harling, there would seem to be little, if any, for a cause of action against the railway company. No act of negligence imputed to the two defendants jointly could have caused the injury without the starting of the train, which movement was admittedly directed by Harling, the conductor. In the circumstances we see no escape from the conclusion that the defendant Harling might reasonably *Page 463 be charged with participation as a joint tort-feasor in the alleged delict upon which plaintiff's cause of action is based. That both he and his principal, the railway company, were innocent participants, as the facts alleged in the petition establish, or tend to establish, goes to the merits, and cannot be held sufficient to justify an inference of bad faith in joining. Harling as defendant.
Since this question of good or bad faith is peculiarly dependent upon careful review and analysis of the facts of the particular case, no useful purpose would be subserved by attempting to review and compare the facts in other more or less analogous cases found in the reports. A brief reference, however, to the facts in Wilson v. RepublicIron S. Co., supra, the decision upon which the learned Circuit Judge based the order of removal, may not be inapt. In that case it appeared that the plaintiff, after bringing an action against the employer in the District Court and taking a "voluntary nonsuit" at the trial "because it appeared that he probably could not recover * * * on the evidence presented," brought an action in the State Court jointly against the employer and a resident employee who, as the plaintiff knew — "was not guilty of any joint negligence with the employer, was not present when the plaintiff's injuries werereceived, and did no act or deed which caused or contributedto such injuries." (Emphasis added.)
Obviously, a very different state of facts from that presented by the case at bar, where the resident employee was present on the scene of action and admittedly gave the signal for the movement of the train which caused the injury to the boarding passenger. See, generally, Alabama G.S.R. Co. v. Thompson, Supra; Shane v. Butte Electric R.Co., Supra; Thomas v. Great Northern R. Co., 147 Fed. 83, 77 C.C.A., 255; Knuth v. Butte Electric R. Co. (C. C.), 148 Fed. 73; Offner v. Chicago E.R. Co., 148 Fed., 201, 78 C.C.A., 359; Thresher v. W.U. Tel. Co. (C.C.), 148 Fed., 649. *Page 464
The foregoing views render unnecessary the consideration of the remaining exception relating to the validity of the bond.
For the reasons stated, the order appealed from is reversed.