54 Ga. App. 751 | Ga. Ct. App. | 1936
Mrs. Ethel Phillips brought suit in the city court of Carrollton against the International Agricultural Corporation and J. A. Rogers, seeking a recovery of $50,000 damages for the homicide of her son, aged 13 years, and alleging that the same was caused by the negligence of the defendants in the operation of a motor truck over a public highway of this State; that Rogers was a servant, agent, and employee of the corporation, and was operating the truck while transacting the business of his employer; that the defendants were negligent in operating said truck in violation of the speed laws, and without due regard to traffic conditions on the highway; that the driver approached the intersection where her son was killed, without any signal or warning of his approach, and drove the truck over onto the wrong side of the road; that he drove the truck without due regard to the rights of her son as a pedestrian at said intersection; that her son was killed by said truck striking him as he was rightfully crossing said intersection, said truck being operated by Rogers at the time to deliver certain fertilizer of the corporation to its agent in Bowdon,
The defendant corporation filed its petition to remove the cause to the United States district court. It alleged that it was a nonresident; that the suit was for more than $3000, exclusive of interest and costs; that the controversy was between a non-resident and the plaintiff, a resident of Fulton County, Georgia; that the corporation owned a fertilizer plant in this State, and loaded certain of its fertilizers on a truck operated by the defendant Eogers, and because of the alleged improper operation of this truck by Eogers this defendant is charged 'with negligence in the loading and operation thereof, causing the death of the plaintiff’s son; that although the plaintiff alleges that Eogers was an agent, servant, and employee of this defendant, and was operating said truck in the course of his employment and while transacting the business of this defendant at the time of the homicide of the plaintiff’s son, this defendant alleges that the controversy between the plaintiff and this defendant is in fact a separate controversy from the controversy between plaintiff and Eogers, the codefendant, in that Eogers was never a servant, agent, or employee of this defendant, nor was he in the course of his employment transacting the business of this defendant at the time of the alleged injury; that Eogers was wrongfully joined with this defendant with the intention of defeating the right of this defendant to remove this cause to the Federal court, and for no other purpose; that the plaintiff does not in good faith intend to prosecute this action on the allegations therein made, to wit, that Eogers was a servant, agent, and employee of this defendant, nor on the allegation, which is made by inference only and not particularly, that the motor truck was the property of this defendant or was being operated by it, nor does the plaintiff in good faith intend to prove in said cause that the fertilizer was being conveyed to an agent of. this defendant at Bowdon, Georgia, as alleged in said petition; that the truth of the matter is that the plaintiff well knows that Eogers, whom she is fraudulently attempting to join in said cause, is not an employee of this defendant, was never at any time such an employee, but was and is a young man engaged in farming in Heard County, Georgia, and Eogers was operating a truck belonging to his father,
The judge of the city court granted the petition for removal, and the plaintiff excepted.
“ Where the right of removal [sought by a non-resident defendant] depends upon the existence of a separable controversy, the question is to be determined by the condition of the record in the State court at the time of the filing of the petition to remove. In an action of tort, the cause of action is whatever the plaintiff declares it to be in his pleading, and matters of defense can not be availed of as a ground of removal.” Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131 (21 Sup. Ct. 67, 45 L. ed. 121). For “it is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in a State court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the circuit court of the United States even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with it and that their own controversy with the plaintiff is a separate one, for as this court has often said, ‘a defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defense may defeat a joint recovery but it can not deprive the plaintiff of his right to prosecute his suit to a final decision in his own way.' Pirie v. Tvedt, 115 U. S. 41 [5 Sup. Ct. 1034, 1161, 29 L. ed. 331]; Sloane v. Anderson, 117 U. S. 275 [6 Sup. Ct. 730, 29 L. ed. 899]; Little v. Giles, 118 U. S. 596, 600 [7 Sup. Ct. 32, 30 L. ed. 269]; Louisville & Nashville R. Co. v. Wangelin, 132 U. S. 599 [10 Sup. Ct. 203; 33 L. ed. 474]; Torrence v. Shedd, 144 U. S. 527, 530 [12 Sup. Ct. 726, 36 L. ed. 528]; Connell v. Smiley, 156 U. S. 335, 340 [15 Sup. Ct. 353, 39 L. ed. 443].” Powers v. Chesapeake & Ohio R. Co., 169 U. S. 92 (18 Sup. Ct. 264, 42 L. ed. 673). And if “upon the face of the declaration — the only pleading in the case — the action is joint, for the purpose of determining the right of removal, the cause of action must be deemed to be joint.” L. & N. R. Co. v. Ide, 114 U. S. 52 (5 Sup. Ct. 735, 29 L. ed. 63); Southern Ry. Co. v. Miller, 1 Ga. App. 616 (57 S. E. 1090). “Yet the
The determination of the question whether the action is joint or several is for the State court. Postal Telegraph-Gable Co. v. Puckett, supra. In order to determine the right of removal it should be assumed that the well-pleaded facts alleged in the plaintiff's declaration are true; and when we do this, the petition in the instant case states a cause of action against both resident and non-resident defendants, as tested by the laws of Georgia; and if the declaration is the only pleading in the case, and it thus appears from the declaration that the joinder of the defendants is in the exercise of a lawful right, the case is not removable. And while the plaintiff's statement in his petition is not conclusive upon the non-resident defendant corporation, it does operate to lay upon the latter as a condition for removal the duty of showing that the joinder of the non-resident defendant company and the resident defendant driver of the truck was a mere fraudulent device to prevent a removal. ‘“The State court has no jurisdiction to try an issue of fact made by a petition to remove a cause from the State court to the Federal court.' Lane Co. v. Rickard, 135 Ga. 650 (2) (70 S. E. 565, Ann. Cas. 1912A, 234); Southern Ry. Co. v. Hudgins, 107 Ga. 334 (33 S. E. 442); Chesapeake &c. Ry. Co. v. Cockrell, 232 U. S. 146 (34 Sup. Ct. 278, 58 L. ed. 544, and cit.). The State court does, however, have jurisdiction to determine questions of law made by the petition to remove, and in so doing to construe in connection therewith the pleadings of the plaintiff. Willys-Overland Inc. v. Johnson, 40 Ga. App. 700, 702 (151 S. E. 414); Postal Telegraph-Cable Co. v. Puckett, 24 Ga. App. 458, 463 (101 S. E. 397), and cit.; Illinois Central R. Co.
Where the allegations contained in the petition to remove amount to no more than a traverse of the charge of negligence set out in plaintiff’s petition, they are insufficient to raise an issue of fraudulent joinder of the codefendant. In Chesapeake & Ohio R. Co. v. Cockrell, supra, it was said that it is not enough to assert that there was a fraudulent joinder of defendants, but there must be “a statement of facts rightly engendering that conclusion,” and that “merely to traverse the allegations upon which the liability of the resident defendant is rested or to apply the epithet
Judgment reversed.