Osteen v. A.C.L.R. R. Co.

May 11, 1922. The opinion of the Court en banc was delivered by Action for $3,500 damages on account of the destruction of a truck belonging to the plaintiff by collision with a train of the defendant at a highway crossing.

Within due time the defendant filed petition and bond for removal to the Federal Court, and made a motion before Hon. T.S. Sease, Circuit Judge, for an order removing the case to the Federal Court. The ground upon which the defendant sought to remove the case was that it appeared in the complaint that a separable controversy existed between the railroad company and the plaintiff, with which the codefendant engineer was not concerned. Judge Sease signed an order refusing the motion upon the ground that the complaint did not state such separable controversy. Thereupon the defendant filed a certified copy of the record with the clerk of the District Court of the United States. Thereafter the plaintiff made a motion before Judge Smith, of the Federal Court, for an order remanding the case to the State Court, which he granted. The case then came on for trial in the Court of Common Pleas for Marion County, before Judge Memminger and a jury, and resulted in a verdict of $2,500 in favor of the plaintiff. The defendant railroad company, which was solely affected by the verdict, appeals.

The appeal involves, first, the correctness of Judge Sease's order refusing to remove the case to the Federal Court.

Section 28 of the Judicial Code (U.S. Comp. St. § 1010) in most unequivocal terms makes the order of a District Judge of the Federal Court remanding a case to the State Court absolutely final — not only final so far as an immediate appeal is concerned, but final even upon writ of error or certiorari to the State Court from the United States Supreme Court after final judgment in the State Court against the defendant. This is conceded by the defendant, which disavows any purpose in this appeal to review the order of Judge Smith remanding the case. But it insists upon its right to review the order of Judge Sease, of the State Court, refusing to remove the case. The defendant was under no obligation to make the motion before Judge Sease. As a matter of courtesy to the State Court, the motion was entirely proper, but, if the petition disclosed a removable case, it was, upon compliance with the Federal Statute eo instante removed to the Federal Court, and no order made or refused by the State Court could charge that status. It must be conceded that, if this Court should reverse the order of Judge Sease, it would be tantamount to reversing the order of Judge Smith, which, as has been seen, was final for all purposes. It would be remarkable if the defendant, by making a motion which it was under no obligation to make, should secure the right to review an order which the Federal statute declares to be final. The right of appeal is not a vested one, but a matter of grace, and in this instance it has been explicitly denied in every conceivable form, writ of error, certiorari, mandamus, or otherwise.

It is accordingly unnecessary to consider whether the complaint states a separable controversy or not; the jurisdiction of the State Court is unalterably fixed by the order of Judge Smith remanding the case. Empire Co. v. TowboatCo., 59 S.C. 549, 38 S.E. 156; State v. ColumbiaCo., 112 S.C. 528, 100 S.E. 355. The first and second exceptions are therefore overruled.

We find it unnecessary to consider other exceptions than the eighth, ninth, tenth, eleventh, twelfth, and thirteenth.

The defendant gave notice of a motion to amend these exceptions by setting out in full therein the several requests to charge, the refusal of which forms the basis of these exceptions. The Court allows the amendments. The exceptions as amended will be reported.

These requests contain established principles of law pertinent to the issues in the case and sustained by the decisions of this Court. Drawdy v. Railroad Co., 78 S.C. 374,58 S.E. 980; Cable Co. v. Railroad Co., 94 S.C. 143,77 S.E. 868; McLean v. Railroad Co., 81 S.C. 100,61 S.E. 900, 1071, 18 L.R.A. (N.S.) 763, 128 Am. St. Rep. 892; McKeown v. Railroad Co., 98 S.C. 338, 82 S.E. 437; Barber v. Railroad Co., 34 S.C. 444,13 S.E. 630. Not having been covered by the general charge (which will be reported), their refusal was reversible error. They were intended to particularly emphasize the duty of a traveler approaching a crossing, the breach of which was relied upon as a defense.

The judgment of this Court is that judgment of the Circuit Court be reversed and the case remanded to that Court for a new trial.

MR. CHIEF JUSTICE GARY, MR. JUSTICES WATTS, FRASER and MARION and MR. JUSTICES WILSON, SHIPP, FRANK B. GARY, RICE, BOWMAN, PEURIFOY, McIVER, MAULDIN, and TOWNSEND, Circuit Judges, concur.

JUSTICE FRASER: I concur with MR. JUSTICE COTHRAN, but think the fourteenth and fifteenth exceptions should be sustained.

Ordinarily a plaintiff may state a number of specifications of negligence, and, if he succeeds in proving one of them he has made out his case. This is not the ordinary case. Here it is alleged that the cause of the injury was made up of four elements, to wit, excessive speed, obstacles to a view of the approaching train, failure to give the statutory signals, and a defective crossing. The complaint alleges that the existence of the four produced the injury. He alleged that, if the signals had been given, or the view unobstructed, he would not have gone on the track; that but for the excessive speed and defective crossing he would have crossed in time to have prevented the injury; that, in the absence of either one of the four, there would have been no accident. It is manifest, therefore, that the plaintiff must prove the presence of each of the four or fail. The engineer was responsible for the speed of the train and giving of the signals, and the jury, in finding for the engineer, has eliminated two elements of the four.

The appellant complains that his Honor refused to charge that the four must be found before there could be a verdict against it. The confusion arises from the inconsistent defenses. A defendant has the right to plead inconsistent defenses, and it availed itself of its privilege fully. When the defendant attempted to remove the case to the Federal Court, it claimed that the complaint contained separable causes of action. On this it, of course, failed as only one cause of action was alleged made up of four concurring specifications. On the trial of the cause it changed its position, as it had the right to do, and claimed that there was only one cause of action made up of the four elements, and asked the Judge to so charge.

It seems to me the appellant's present construction of the complaint is correct, and it was error to refuse the requests, and there should be a new trial.

MESSRS. DeVORE and BOWMAN, Circuit Judges, concur.

MR. McIVER, Circuit Judge: I also concur in so much of MR. JUSTICE FRASER'S separate opinion as holds that, under the pleadings in this particular case, plaintiff, in order to recover, must prove the presence of all four of his specifications of negligence. After setting out four specifications of negligence, all of which, he alleges in substance, concurred in causing his injury, and that in the absence of either one of the four, there would have been no accident, he must prove the existence of all, or fail.