Powell v. Southern Ry. Co.

April 15, 1918. The opinion of the Court was delivered by The Circuit Court refused the motion of the Virginia Bridge and Iron Company, one of the two defendants, to remove the case to the Federal Court for the Western District of Virginia, the alleged domicile of both defendants, and the appeal involves the issue of removal; that is the admittedly single issue up, though there are five exceptions.

All the parties to the action, so the movements declare, are nonresidents of South Carolina; the plaintiff, of North Carolina, and the two defendants, of Virginia. The tort was done in this State. If that be so, then the case is triable in this State, and was not subject to removal. Fed. Stats. Ann. Supp. 1914, p. 678.

Again, the complaint alleges a joint tort, and any motion for a removal must have been made by both defendants.Chicago, R.I. P.R. Co. v. Marion, 178 U.S. 248,20 Sup. Ct. 854, 44 L. Ed. 1055; Baber v.Railroad, 76 S.C. 4, 56 S.E. 540; 11 Am. Cas. 960.

But the appellants suggest the tort was not joint, and that the testimony will show such to be so. The complaint alleges a joint tort, and for the purposes of the motion that is assumed to be true.

There is nothing in the appellants' suggestion that the railway company is liable as an employer under the act of Congress entitled the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U.S. Comp. St. 1916, sections 8657-8665]) while the bridge company is liable under the common law. The complaint alleges that the transaction was one, and that both defendants had concurrent part in the transaction. It matters not that the law casts upon each defendant a different duty thereabout; that consideration does not separate them in the performance of the same act.

The order of the Circuit Court is affirmed.