8 S.E.2d 574 | Ga. Ct. App. | 1940
Lead Opinion
1. "Although there may, in a suit against two or more defendants, one of whom is a non-resident, be charges of concurrent negligence against all, yet if there be also a distinct charge of negligence against the non-resident alone, sufficient in and of itself to give rise to a cause of action, the case is one involving a separable controversy between citizens of different States, and therefore removable to the proper United States court;" and "when removal is proper, the effect is to carry the entire case into the Federal court." The quoted rule is not inconsistent with the ruling that in an action for the homicide of the plaintiff's mother, brought against a resident automobile owner and driver and a non-resident automobile manufacturer, on the ground that the former negligently drove the car and the latter negligently constructed the car, the non-resident defendant is not entitled to removal of the cause from the State court to the Federal court, since the driver's negligence and the manufacturer's negligence concurred, and this concurrent negligence was the sole proximate cause of the death. The petition presented a joint, and not a joint and several, cause of action.
2. The facts that separate judgments may be entered against each defendant, and that separate defenses to a joint cause of action existed, do not create a "separable controversy" subject to removal from the State to the Federal court. There can be no "separable controversy" unless more than one cause of action is alleged.
3. "Respecting removability, Federal court should be as careful to avoid encroachment on State court's proper jurisdiction as it is vigilant in protecting its own jurisdiction; and doubt, if any, should be resolved in favor of remand to State court." Siler v. Morgan Motor Co.,
4. The judge did not err in refusing to remove the cause from the State to the Federal court.
The Supreme Court, with reference to removal of causes to the Federal court, has said that "Although there may, in a suit against two or more defendants, one of whom is a non-resident, be charges of concurrent negligence against all, yet if there be also a distinct charge of negligence against the non-resident alone, sufficient in and of itself to give rise to a cause ofaction, the case is one involving a separable controversy between citizens of different States, and therefore removable to the proper United States court," and "when removal is proper, the effect is to carry the entire case into the Federal court." (Italics ours.) Southern Railway Co. v. Edwards,
No question of fraudulent joinder of a resident defendant is raised. The sole contention is that a separable action is alleged; that is, "that there can be a final determination of the controversy between it and the plaintiff without the presence of the other defendant as a party in the case." Differing from a fraudulent joinder, there can be no separable controversy in a suit unless more than one cause of action is alleged. In the present case there is but one ground of suit, one reason for process, one cause of action, one occasion for damages. It is for the wrongful death of the plaintiff's mother. This is denominated in our State as an action for homicide; and so far as the plaintiff is concerned, there is but one action based upon a single wrong. See Siler v. Morgan Motor Co., supra. It is true that the non-resident has a separate defense as to furnishing its joint defendant with an automobile with knowledge of its defective condition, but it is not in and of itself a controversy solely between citizens of separate States, and which can be fully determined between them. Taking the act of the nonresident by itself (that is, furnishing a defective automobile), it is not a controversy at all, because no injury was done, no cause of action arose, until the accident happened. The furnishing of the defective automobile and placing it in general use in a dangerous and unsafe condition for its intended use is but one issue in the controversy, but one element or constituent of the cause of action against the non-resident. The other elements and the amount of damages claimed are common to both defendants, one of whom is a resident of Georgia, the other a non-resident. "These connecting, constituent elements unite the controversy into a joint cause of action at the option of the appellant [plaintiff]. If separate suits were filed, there could be but one recovery awarding full damages; and a partial recovery would have to be credited on any subsequent claim for damages. What the appellant wants is not partial relief, but full compensation. The remedy which she [plaintiff] seeks requires the presence of both tort-feasors." Tolbert v. Jackson, 99 Fed. 2d, 513, 515. We think the reasoning in the Tolbert case by Judge Holmes of the Circuit Court of Appeals is sound, and we have in effect adopted it as our own.
The instant case is distinguishable from Southern RailwayCo. v. Edwards (quoted above), where Judge Lumpkin held that under the allegations of the petition the plaintiff was proceeding both *180 on a joint cause of action against the non-resident and the resident defendant, and on a several cause of action also against the nonresident defendant alone. This we think is true, for on reading the opinion it is found that he said: "In so far as related to the joint acts of negligence [overloading the tender with coal] the case made by the plaintiff's petition would not be one which could properly be removed to the United States court." With reference to the alleged negligent act in not providing the engine with a careful and prudent engineer, he said, "That paragraph certainly did not charge an act of `concurrent negligence,' . . but makes his [this] charge of negligence with respect to employing an incompetent engineer against the company alone. As to this particular matter, therefore, there was a `separable controversy' between the plaintiff and the company." In other words, a joint and several action was alleged, joint against both, several against only the non-resident defendant. There being a several cause of action against the non-resident defendant alone, of course the case was removable. In the instant case, while the plaintiff might have based his suit on a separate, individual act of negligence of the non-resident, he did not elect so to do, but he elected to bring his suit alone on the joint acts of negligence of the resident and non-resident defendants. The facts that in dealing with the automobile in question the defendants acted entirely independently of each other, and that there was no relation of principal and agent, of master and servant, or of bailor and bailee between the defendants, nor did they in any way jointly participate with each other in the handling of the automobile, do not defeat a joint liability. Siler v. Morgan Motor Co., supra. The cause of action set out is joint; and the petition does not, in addition thereto, set out a several cause of action against the non-resident defendant alone, as was done in the Edwards case. Here the plaintiff pleads and relies on the joint cause of action against both the resident and the non-resident defendants, and this he had a right to do at his option.
In Armour Co. v. Bowden, supra, Judge Jenkins was but reiterating the rule laid down in the Edwards case, and in effect held that the petition in that case showed both a joint cause of action against both defendants and a several cause of action against the non-resident defendant alone; and that the cause was removable. He did not exclude from this State the rule that if the petition *181 shows a joint cause of action alone, the cause is not removable. It is likewise distinguishable from the instant case. It follows that the demand against the non-resident defendant must necessarily involve the presence of the resident defendant, and that the cause is not removable. The cases cited by the plaintiff in error are distinguishable from the instant case.
Judgment affirmed. Guerry, J., concurs.
Dissenting Opinion
I think that the petition sets forth a distinct and separable charge of negligence against the non-resident defendant alone. In my opinion this case is controlled by the decision in Southern Ry. Co. v. Edwards,
Addendum
In Armour Co. v. Bowden, supra, on examination of the original record, it is found that the petition alleged in paragraph 3: *183 "That defendants have injured and damaged plaintiffindividually and jointly in the sum of $5000, by reason of facts hereinafter set forth." (Italics ours.) In paragraph 17 it was alleged that the resident defendant, Bowden, was negligent in certain particulars which were specifically set forth in subparagraphs. Paragraph 18 alleged that the non-resident defendant was negligent in certain particulars which were set forth in subparagraphs, and then alleged: "And both defendants herein were negligent in failing to give plaintiff notice or warning that said sausage was poisonous and dangerous for human food before selling the same to him." In that case there was no express allegation in the petition that the plaintiff was exercising its option to proceed upon a joint cause of action alone. On the contrary, the pleadings expressly said that he was seeking a judgment against both resident and non-resident defendants, individually and jointly, and in separate paragraphs undertook to say what individual acts of negligence, what facts, constituted his cause of action; and the court in that case seems to have said that as to the individual non-resident defendant the acts of negligence set forth showed preliminary facts which, if true, warranted the plaintiff's conclusion (the ultimate fact) that he was entitled to recover against the non-resident defendant, irrespectively of any concurrent or non-concurrent acts of negligence on the part of the resident defendant; and thus the plaintiff in his pleading set forth a separate cause of action and presented for judicial determination the question of separate liability of the non-resident defendant. It seems to us that in that case the plaintiff exercised his option, and his pleading presented for judicial determination the question of both joint and separate individual liability of the resident and non-resident defendants. In the instant case, the plaintiff, it seems to us, was undertaking to exercise his option and to present by his pleading, for judicial determination, a cause of action based alone upon joint, concurrent acts of negligence giving rise to a cause of action against both of the defendants jointly. Paragraph 22 of the petition is in part as follows: "Petitioner alleges that the following acts of gross negligence of the defendant Mrs. Cannon, and the following acts of negligence of the defendant General Motors Sales Corporation, concurred to produce, and were the proximate cause of, the death of petitioner's mother." This part of paragraph 22 is then followed by allegations of the acts *184 of negligence of the resident defendant, Mrs. Cannon, which are specifically set forth in subparagraphs. Then immediately following, in the same paragraph (22), are allegations of the acts of negligence of the non-resident defendant, General Motors Sales Corporation, which are likewise set forth in subparagraphs. Notwithstanding the express allegations in paragraph 22 that the plaintiff is endeavoring to exercise his option of basing his suit solely on joint, concurrent negligence, he nevertheless further alleges in paragraph 23: "As the sole proximate result of the negligence of the defendant corporation and the gross negligence of the defendant Mrs. May W. Cannon, as aforesaid, petitioner's mother was killed." Thus the petition in effect alleges that the concurrent negligence of both defendants was the sole proximate cause of the death of the plaintiff's mother. It might be here said that none of the negligent acts alleged against the non-resident defendant was of such a character that it set forth a cause of action which excluded the resident defendant, as was true of subparagraph f of paragraph 11 of the petition in Southern Railway Co. v. Edwards, supra. If paragraphs 22 and 23 in the instant case (conceding but not deciding that the alleged acts of negligence are actionable) do not sufficiently allege that the plaintiff is exercising his option to base his suit solely on a joint cause of action, and if he has not done so by these allegations, it is difficult for us to understand how he must plead in order to exercise this option to sue the defendants jointly and base his cause of action alone on the joint concurrent negligence of both resident and non-resident defendants.
Rehearing denied. Guerry, J., concurs. Broyles, C. J.,dissents.