Davis v. Odom , 295 F. 319 ( 1924 )

ROSE, Circuit Judge.

In this case the defendant in error originally instituted her suit in the court of common pleas for Florence county, S. O., not only against the plaintiff in error, because of his possession and control of tbe railroad lines of the Atlantic Coast Line Railway Company, a corporation of Virginia, but also against two other persons, C. A. Faulkner, the engineer of the locomotive, the collision with which proved fatal to the decedent of the defendant in error, and J. Price, the section master of the railroad, having charge of the track and right of way at the point of the collision. Both these individuals were citizens of the state of South Carolina. The case was therefore one which, in the absence of proper allegations of fraudulent or illegal joinder, could not have been removed to the courts of the United States on the ground of diversity of citizenship, for there were citizens of South Carolina on each side of the controversy. The case, however, was removed as one arising under the laws of the United States, and because it was, in effect, one against the United States.

For the reasons set forth in the opinion handed down this day, in the case of Shirer v. Davis, Agent 295 Fed. 317 the removal was improperly made. It follows that the judgment must be reversed, and the cause remanded to the United States District Court for the Eastern District of South Carolina, at Florence, with directions to remand the case to the court of common pleas of Florence county, S. 0.

Reversed.