6 A.2d 489 | N.J. | 1939
The gravamen of the complaint is the "speaking and publishing" by defendant Urdang, "acting" as the "agent and servant" of his co-defendant — it is also alleged that he was the company's "authorized agent * * * for the purpose of furthering and fostering sales of cash registers manufactured by" it — "in the presence and place of business" of others, "including certain customers" of plaintiff, of certain "false, scandalous and defamatory words of and concerning the plaintiff * * * for the purpose of injuring" him "in his good name, integrity, fame and reputation for honesty and reliability" in his business; and the corporate defendant's petition for removal, under section 28 of the Federal Judicial Code (28 U.S.C.A., § 71), is grounded in the claim that the "litigation presents a separable controversy as to" it, and "properly could be fully determined without the presence of" the individual defendant, and the cause is therefore removable for diversity of citizenship.
More specifically, it is averred that the complaint does not allege that the corporate defendant authorized the uttering by its co-defendant of the pleaded defamatory words, or that it "ratified" his "acts;" that, under the laws of New Jersey, "the mere fact that a person is employed by another does not furnish any basis to find as a fact that he has implied power to make false and scandalous accusations;" that Urdang, a citizen of New Jersey, "is wrongfully and fraudulently joined as a defendant" with the petitioning defendant "for the sole purpose of preventing a removal" of the cause to the Federal Court, and such joinder "was merely a sham or device to prevent an exercise of such a removal by this defendant;" that "plaintiff well knew all along that this defendant was not in any degree whatsoever responsible for the alleged action of the defendant" Urdang, and was "not guilty of any joint tort and was not present when defendant" Urdang "allegedly spoke the false, scandalous and defamatory *526 words, and that this defendant did no act or deed which caused or contributed to any damage alleged to have been suffered by the plaintiff."
The rule is invoked that the "power to make false and slanderous accusations" is not to be implied from the relationship of master and servant (citing Peterson v.Crossley, 14 N.J. Mis. R. 501; affirmed,
Apart from the cited allegations of the complaint, it is pleaded that the utterances complained of "were false and malicious and were spoken by the said" Urdang "as the agent and servant of" the corporate defendant, "for the purpose of so injuring * * * plaintiff in the operation of his said business that it," the corporate defendant, "would secure the sales which might otherwise go to its competitor, the said plaintiff."
While not phrased with technical nicety, these averments, if established by evidence, are sufficiently broad to sustain a judgment against the corporate defendant for the averred tortious act of its servant. And it was proper to join the master and servant as defendants in the one suit. See Hoboken Printing Co.
v. Kahn,
And it is also the settled rule that, where the claim is fraudulent joinder to prevent removal, it is requisite that the petition contain a "statement of facts rightly engendering" such a conclusion; otherwise, the state court is not ousted of jurisdiction. The bare allegation that the joinder was so motivated does not suffice. The showing must be such "as compels the conclusion that the joinder is without right and made in bad faith;" merely to traverse the allegations of liability is not enough. Chesapeake and Ohio Railroad Co. v. Cockrell,
Where the plaintiff has elected, in good faith, to sue jointly in tort a foreign corporation and its servant whose alleged misconduct caused the injury complained of, there is no separable controversy within the intendment of the removal statute, even though the joinder may be improper. Alabama G.S.R. Co. v.Thompson,
Here, the individual defendant is not a "formal or unnecessary" party within the intendment of Salem Trust Co. v.Manufacturers' Finance Co.,
Motion denied, with costs.