47 S.E.2d 166 | Ga. Ct. App. | 1948
In order to entitle a nonresident joint defendant to remove a case to the Federal court as to such party, in accordance with Title 28, Section 71, U.S.C.A., there must be alleged in the petition of the plaintiff a separable and distinct controversy between the moving party and his adversary, which is not dependent, as a part of the proximate cause, upon the negligence alleged against other resident defendants who are joined in the original suit with such nonresident party. See Title 28, Section 41 (1), and Title 28, 71, U.S.C.A.; Western Union Telegraph Co. v. Griffith,
The defendant, Southeastern Greyhound Lines, filed its petition for the removal of said suit to the Northern District of Georgia, Rome Division of the United States District Court before answering or otherwise making an appearance in the superior court and before required to do so, in which petition it alleged facts as follows: that it is a resident of Kentucky, and that its joint defendants, M. D. and George Gary Hamilton, are residents of Georgia; that the amount in controversy is in excess of $3000; that the suit, as between the defendant Southeastern Greyhound Lines Inc., and the defendants, M. D. and George Gary Hamilton, presents a separable controversy, because the petition of the plaintiff alleges a complete cause of action against it and against them without alleging any acts charging the same negligence; that the acts of negligence alleged against it are totally and wholly independent of the acts alleged against them. The petition proceeds to point out the specific acts of negligence charged against it and the specific acts charged against the Hamiltons. The petition is properly sworn to and accompanying it is the required bond.
Upon the hearing of the petition for removal, the trial judge entered a judgment denying the same, and this judgment is assigned as error. All of the decisions of the appellate courts of this State cited in the briefs of counsel for both sides, as well as one other decision of this court, are cited in support of the principle of law enunciated in the headnotes. All of said decisions either directly or indirectly support this principle; for, it matters not whether a case was held to be removable or not removable, according to the record of each such case, the principle of law set out in the headnote is the yardstick by which each case must be measured in order to determine its removability. *816
If the petition of the plaintiff alleges acts of negligence against such joint nonresident defendant that in and of themselves constitute a cause of action against such defendant, separable from and in no way dependent upon the acts of negligence alleged against the resident joint defendants, the cause of action is separable and the case is removable as to such joint nonresident defendant. On the other hand, if the acts of negligence charged against such joint nonresident defendant are such that they are interwoven with and dependent upon the acts of negligence charged against the resident joint defendants, so that the negligence of all is required to constitute the proximate cause, the case is not removable as to the nonresident joint defendant. There are many Federal cases which support this reasoning. However, none are cited, since the test is what the Georgia law provides relative to joint actions. See Armour Co. v. Bowden (supra). Therefore the Federal authorities in this State are merely persuasive. They are not cited here, for the further reason that the question of whether or not the instant case is removable is clearly established by the decisions of our own appellate courts which are cited.
In the instant case, construing the petition of the plaintiff as a whole, it alleges in substance certain negligence against the defendants, including the charge that the nonresident defendant's bus was being driven by the agent of the defendant company in a northerly direction on said highway at a speed of 60 or 70 miles per hour and partially out of control when it was at a point several hundred yards from the car in which the deceased was riding; that, while being thus driven, it met the automobile being driven by the resident joint defendants at a point about 80 to 100 feet in front of the car in which the deceased was riding; that, at the meeting place of said vehicles on the highway, the car being driven by the resident joint defendants was failing to yield one-half of the traveled roadway to the bus; that, on account of the speed at which the bus was being driven, the curve in the road, its slippery surface, its width and character, the width, height, length, and weight of the bus, the fact that it was particularly out of control then, and the fact that the other joint defendants were over the center of the highway with their car, caused the bus and the car being driven by the resident *817
joint defendants to collide, and this caused the bus to swerve to its left-hand side of the highway and collide with the car in which the deceased was riding. Thus, the concurring negligence of the joint nonresident defendant and the joint resident defendants is alleged to be so interwoven and dependent upon each other as to require the negligence of both to constitute the proximate cause. Let us suppose that the car which the Hamiltons were driving had continued over the center line and some 80 to 100 feet in front of the car in which the deceased was riding, but did not meet and collide with the defendant's bus. Certainly, under such circumstances, the collision resulting in the death of Jane Gilstrap would not have occurred. Then let us suppose that the defendant's bus, in meeting the car in which the deceased was riding, was being operated at the time partially out of control and at the rate of 60 or 70 miles per hour, but there was no car being operated over the center line between it and the car in which the deceased was riding. There is nothing in the petition of the plaintiff in the instant case that would indicate that a collision would have thus resulted between the bus and the car in which the deceased was riding. It is true that a bus being operated in the negligent manner alleged might have collided with the car. On the other hand, it might have run into the ditch on the opposite side of the road. Or complete control of it might have been regained and its speed reduced without any mishap. Therefore it follows that, according to the allegations of the plaintiff's petition, the concurrent negligence of the nonresident joint defendant and that of the resident joint defendants was required to constitute the proximate cause of the collision between the bus and the car in which Jane Gilstrap was riding, resulting in her death. See Western Union Telegraph Co.
v. Griffith,
The case here, as shown by the petition, is one of joint and several liability against the nonresident joint defendant and the resident joint defendants, and the doctrine of respondent superior can in no way apply so as to impute negligence from one to the other. It was optional with the plaintiff whether to sue them jointly or severally. See Western Union Telegraph Co. v.Griffith, supra. The plaintiff having elected to sue jointly, and the petition not having alleged a separable and distinct controversy between the moving party and its adversary, which can be lawfully determined as between them without presenting also the negligence of the resident joint defendants in order to make out a case, the judgment of the trial court overruling and denying the petition to remove is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.