210 F. 925 | D.S.C. | 1913
Lead Opinion
This cause came on to be heard upon an application to remand the same to the court of common pleas for .Dor-chester county in the state of South Carolina, and, due notice having been given of said application, counsel on both sides having been heard, it is thereupon ordered and adjudged as follows-:
The action is an action at law originally instituted in the court of
The plaintiffs have moved that the cause be remanded to the court of common pleas for Dorchester county upon the following grounds:
1. That the statute requires the petition for removal to be “duly verified” and the petition in this cause -is not duly verified.
2. That there is no separate controversy in the cause in that the complaint alleges but one single cause of action and tort.
3. That no scienter is alleged in the petition on the part of the plaintiffs herein as to the fraudulent joinder of the defendant Forest Mc-Duffie; that is, there is no allegation in the petition for removal that at the time of'the joinder the plaintiffs well knew that the said Forest McDuffie was not a proper party defendant nor responsible as such upon any cause of action set up in the complaint and that his joinder was therefore not made in good faith, but was fraudulent.
The Judicial Code of the United States, § 29, prescribes only that the petition shall be “duly verified.” The “due” verification of a petition would somewhat depend upon the contents of the paper and the circumstances of the case. Where a petition for removal is filed upon the ground that the cause of action set up in the complaint is one arising under the Constitution or laws of the United States, it would be a matter to be determined as a conclusion of law upon an inspection of the complaint. There would be no matters of fact to be set up in the petition to be verified. The swearing by a petitioner that the matters of law alleged by him in his petition as cause for removal would be no verification. The only verification required in such case should be a proper verification that the party purporting to make the application to remove does actually make the same.
Is there involved in the cause of action set up in the complaint two different and separable causes of action? And is one of these causes of action one which is wholly between the plaintiffs and the defendant the Southern Bell Telephone & Telegraph Company? The complaint alleges: That the defendant the Southern Bell Telephone & Telegraph Company is a public service corporation maintaining a telephone line between St. George, S. C., and Columbia, S. C., passing through Branchville, S. C., and as such was subject to the performance of the duties of a public service corporation in that respect. That the plaintiff Joseph Murray at St. George paid to the defendant the Southern Bell Telephone-& Telegraph Company its toll of 50 cents for three minutes’ conversation over its wires to his coplaintiff Mary Elizabeth Murray, then Griffin, in Columbia, S. C. That by the agreement this 50 cents was to cover the three minutes’ uninterrupted use of the wire to talk. That whilst so talking “the defendants jointly and concurrently in breach of the said contract and in willful and wanton disregard of the rights of the plaintiffs, and of their public duty and service then and there owing to the plaintiffs by the defendants maliciously, knowingly, wrongfully, and insultingly, in the hearing of the plaintiffs, and by use of said telephone wires then being used by plaintiffs, made grossly obscene, indecent, and insulting remarks to the plaintiffs, and thereby broke up the conversation between the plaintiffs,” and prevented the plaintiffs from continuing the conversation by the uninterrupted use of the telephone wire, to their damage $50,000.
A telephone company in the state of South Carolina is a public service corporation; it is not strictly a common carrier, but it belongs to the same class of corporations as the public carrier class, and as such, while not subject to the same stringent rules which govern in ascertaining the liability of common carriers, yet it is bound to supply all alike who are in like circumstances with similar facilities under reasonable limitations for the transmission of news without any discriminating whatsoever in favor of nor against any one. State v. Telephone Co., 61 S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870. It would also be its duty in the performance of its service to the public to perform it with all due regard to the rights .of the public and the individuals using its system for the purpose of communication. Whenever any person contracts with it for the use of its wires, it is similar in general character to the contract with a railroad company for the shipment of a piece of freight over its lines, and the failure of
Under this view of the South Carolina Supreme Court, the present complaint appears to state two separate and distinct causes of action. One is against the Southern Bell Telephone & Telegraph Company as a public service corporation for failing to perform its duty in affording to the plaintiff the uninterrupted use of the wire for the purpose of communication for the period for which he paid. This is a distinct and independent cause of action between the plaintiffs and the defendant the Southern Bell Telephone & Telegraph Company, for its breach of contract or tortious failure to perform its duty in this respect. It constitutes a controversy which can be wholly determined as between the plaintiffs and the Southern Bell Telephone & Telegraph Company, without the presence of any other party and one in which no other party would be a proper party.
The other cause of action alleged is a willful tort or invasion of the plaintiffs’ rights due to the invasion of the personal rights of the plaintiffs, when using the wires; that is, by the alleged willfully indecent and improper words and declarations of the defendants.
Inasmuch as a corporation can speak only through its agents who are natural persons, this allegation must be taken to refer to the defendant Forest McDuffie. It is a charge that McDuffie through the opportunity given him by his employment by the Southern Bell Telephone & Telegraph Company took advantage of the occasion by his language to so insult and offend the plaintiffs as to drive them from the use of the wires, and for his conduct in that regard it is claimed that both employer and employé are responsible.
This would seem, under the procedure in South Carolina, to constitute an independent cause of action for willful and punitive dam
Such would appear to be the more simple and logical rule'. The cause of action in each case may depend upon the same facts. Exactly the same testimony may be necessary to sustain either alleged cause of action. The rule in South Carolina splits up the causes of action arising from the same facts so as to make one separate and independent cause of action re'st upon the breach of a legal duty, and another rest upon the motive or manner in the committing the breach, so as that under the law of South Carolina damages may be sued for and recovered for the motive and manner of an alleged breach of legal duty, although the breach itself did not occasion even nominal actual damages.
So that under the practice in the state courts of South Carolina in common-law cases the complaint herein presents two independent separate controversies on either of which an independent nonsuit could be ordered by the court and the cause sent to the jury on the other alone. The plaintiffs could have brought this action on either alone, or they could, if they had seen fit, have brought separate and independent actions to one of which the Southern Bell Telephone & Telegraph Company would have been properly the sole defendant. As it appears that there are two separate and distinct causes of action or controversies set up in the complaint herein in one of which .there is a controversy existing wholly between the plaintiffs and the Southern Bell Telephone & Telegraph Company which can be determined wholly and entirely between them without the presence of any other party defendant, the case is one under the statute properly removable to this court, it is unnecessary to consider the question as to the fraudulent joinder, and the motion to remand is, accordingly, refused.
Rehearing
On Petition for Rehearing.
This matter came up to be heard upon a petition for a rehearing upon the order of this court filed July 25, 1913, refusing a motion to remand.
The application for rehearing was upon the ground that the complaint in this case is solely for a’tort jointly committed by the de
The plaintiff claims that the willful breach of the contract in effect justified an action in tort, and that where a tort occurs all tort-feasors, including therein employer and employe, are by the law of South Carolina jointly liable. The question, as it is an action at law, is to be decided mainly upon the principles adjudicated as governing similar actions at law in the state courts of South Carolina. A great deal of confusion has arisen with regard to the distinction between actions on contract and actions on tort. Originally the general definition of an action arising on contract was where the action was either to recover the amount due under the contract, or for damages for the breach of- the contract. The breach of the contract has been also held to be, not an action on contract, but an action in the nature of an action on tort for damages for the unlawful breach of the contract. But the general definition of an action on contract was supposed to include both an action-to recover the amount due under the terms of the contract, as well as an action to recover for the damages for the breach of the contract. An action in tort was supposed to be distinguished from that of an action on contract inasmuch as it arose entirely independent of any contract or agreement of the parties and wholly out of reciprocal and respective duties fixed by law. In many cases, however, the lines between the two classes of cases was difficult of ascertainment. Some torts appeared to arise out of a condition of affairs produced by a breach of contract, i. e., the parties occupied a certain relation torvards each other by virtue of contract, and upon its breach action might be taken by one party against the other, not strictly within the line of an action for a breach of the contract, but arising from the duties imposed by law upon the parties respectively by virtue of their relations created by contract, and which action has been characterized as one in tort.
When an action is brought in such cases, therefore, it may be difficult -to ascertain from involved and uncertain allegations in the complaint whether the plaintiff is suing for a breach of the contract, or whether he is suing for the tort from which he claims to have suffered by the act of the other party independent of the contract itself, but simply occurring by the situation consequent upon the contract, or whether he is suing upon both. If he was suing upon a tort wholly and independently, it may be a case in which the master and servant are jointly responsible. The master is not responsible jointly with the servant for all of the torts of the servant. He is responsible only for such torts as were committed in the line and the scope of the employment of the servant. He is never liable for willful and malicious acts of the servant committed wholly outside of the scope of his employment. In the state of South Carolina, however, the doctrine has been established that for acts of trespass to person
Speaking generally, the servant is not responsible for the damages resulting from the breach of the master’s contract, but only for such damages as may be inflicted by some negligent or willful tort of his own. In the present case the complaint seems to set up two causes of action. It distinctly alleges that the action against the defendants was for an act done in breach of the contract. Next, that it was in willful and wanton disregard of the rights of the plaintiffs and their public duty and service then and there owing to the plaintiffs for which punitive damages are asked. The joinder of these two different,causes of action seems to be allowed by the practice of the state courts of South Carolina. In the case of Cave v. Seaboard Air Tine Ry. Co., 77 S. E. 1017, decided April 7, 1913, the Supreme Court of South Carolina decides expressly that for the carrier’s breach of a contract in the case of a carrier’s failure to perform its contract for. transportation or of its duty to the public the passenger's remedy is an action for damages. That would appear to mean that the plaintiff in such cases has two causes of action against the carrier: One, for the breach of the carrier’s contract made between the carrier and the plaintiff personally; the next, for the breach of the carrier’s duty to the passenger as part of its duty to the public for its failure to perform that duty to the particular plaintiff. That court further holds that there can be another cause of action, to wit, the conduct of the conductor in insulting and humiliating the passenger, for which the plaintiff could recover punitive or vindictive damages from both the carrier and its employé.
The Supreme Court of South Carolina in brief, in this case, seems to hold that, in the case of a public service corporation transporting passengers, a passenger wrongfully ejected has three causes of action:
This rule in South - Carolina as mentioned in the first order made is different from the common-law rule. Under the rule at-common law there would be but one cause of action in this case, viz., failure of the defendant to perform its contract of transportation, that contract being in effect one; the particular contract to be transported between two particular points as paid for by the passenger being treated as a contract made and having written in it as a part of the particular contract the duties due by the public service corporation to the passenger under such a contract. The punitive damages at common law would not be a separate cause of action, but would be simply an intensification or aggravation of the damages arising from the tortious act of the conductor in the performance of his duty. Under the common-láw rule of practice and pleading, the conductor could properly be joined in an action brought for that purpose,' the cause of action being one and the cause would not be removable; but where, as under the practice and law in the state of South Carolina, the causes of action are declared to be wholly separate and independent, and which can be set up or sued upon separately, they are held to constitute separate and independent controversies. Such being the case, under the language of this complaint a controversy is therein set up in the shape of a recovery sought against the defendant for the breach of contract. It is a separate independent cause of action, and one which can be sued upon and recovered upon separately and is a controversy existing wholly between the plaintiff and the defendant the Southern Bell Telephone & Telegraph Company, and the case would be removable upon the ground of a separable controversy.
