110 F. 803 | U.S. Circuit Court for the District of South Carolina | 1901
This case comes up on a petition of the Flynt Building & Construction Company, a corporation of the state of Massachusetts, praying that the plaintiff be enjoined from proceeding any further against it in the state court, because it has filed the record in this court after a petition for removal, with
The action is brought by Margaret Coker, as administratrix, for damages resulting, from the death of her son, James H. Coker, who died intestate. The complaint has 20 paragraphs. The first two set out the corporate character of the two defendant corporations, the Monaghan Mills, a corporation of the state of South Carolina, and the Flynt Building & Construction Company, a corporation of the state of Massachusetts, the two defendants. The third to the fourteenth paragraphs, inclusive, set out the cause of action against the Monaghan Mills as follows: ‘That it is the owner cf a certain brick building, three stories high, constructed for the purpose of manufacturing cotton goods, in which it was engaged in having certain machinery and other appliances placed. The east end of this building was shut in by a wooden partition, instead of a brick wall, so as to provide for further extension of the building if this became advisable. Alongside of this partition was a stairway from the bottom to the top floors, out of which doors entered upon the several floors, which doors swing inside of the building, and to the right. Those who had occasion to go from the ground to any floor of this building were permitted and accustomed to use this stairway. Its doors were not locked, and the stairway was free to be used. On 28th January, 1901, plaintiff’s intestate was in the employ of the Sacco & Petty Machine Shops, a corporation which had sold certain machinery to the Monaghan Mills, and was bound by contract to place said machinery in such mills as the Monaghan Mills would direct. At the instance and request of the Monaghan Mills the said Sacco & Petty Machine Shops directed the intestate of plaintiff on that day to go to the Monaghan Mills and report for orders, and, having so reported, was directed by it to place certain machinery on the third floor of the building. The intestate had never been in the building before, knew nothing of its interior arrangements, was not apprised thereof by the Monaghan Mills, nor was he warned of any danger in approaching or entering the said third floor by means of said stairway, and through the door entering therefrom. Just inside the building,
Analysing the above, it will be seen that the charge against the Monaghan Mills is that it invited the intestate of the plaintiff into its building to do some work for it. The theory is that under these circumstances it was bound to furnish a safe entrance and place for the intestate to work, and at least to warn him of any existing danger,, and that, not having done so, and the intestate having been killed by reason of an unsuspected danger in the entrance,- it is liable. The charge against the Flynt Building & Construction Company is wholly of a different character. This defendant did not invite plaintiff’s intestate to the building; had no connection whatever with him, or with the machinery which he was instructed to put in place; no connection whatever with the corporation furnishing the machinery. It is charged with having made a contract with the Mona-ghan Mills, and with having failed to perform said contract, and for such failure it is held responsible to plaintiff. The line of defense of the Monaghan Mills is wholly different from that which the Flynt Building & Construction Company must take, and the question of law upon which its liability depends or may be defeated is entirely distinct from that upon which the liability of the Monaghan Mills mpst be tested. The allegation of liability on part of both defendants is a conclusion of law, not of fact. Clearly, there is a separable controversy, and the cause is removable.
The petition in this case prays an injunction against the state court, and the plaintiff in the state court, from proceeding any further in the case, as it has been removed into this court. The petition for removal and bond have not as yet been presented to the state court, and the prayer for removal has not been acted upon. Section 720 of the Revised Statutes provides that “the writ of injunction shall not be granted by any court of the United States to stay proceedings-in any court of a state, except in cases where such injunction may be
After this opinion was prepared, his honor Judge Klugh, In the court ot common pleas at Greenville, S. 0., signed an order removing this case, holding the controversy separable. . .