Armour & Co v. Bowden

• Decision Date: 14 January 1935
• Docket Number: Nos. 24193, 24194.,s. 24193, 24194.
• Citation: 178 S.E. 394,50 Ga.App. 476
• Court: Georgia Court of Appeals
• Parties: ARMOUR & CO. v. BOWDEN et al. (two cases).

50 Ga.App. 476

178 S.E. 394

ARMOUR & CO.

v.BOWDEN et al. (two cases).

Nos. 24193, 24194.

Court of Appeals of Georgia,

Division No. 2.

Jan. 14, 1935.

Rehearing Denied Feb. 2, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Meriwether County; L. B. Wyatt, Judge.

Suits by A. C. Bowden and others and by J. O. Bowden and others against Armour & Co. and another, wherein named defendant filed a petition for removal of the cases to the proper United States court. To review a judgment denying the petition for removal, named defendant brings error.

Reversed.

Harold Hirsch & Marion Smith and A. S. Clay III, all of Atlanta, for plaintiff in error.

Frank Hatchett and J. B. Hatchett, both of Greenville, and J. C. Bowden, of Atlanta, for defendants in error.

Syllabus Opinion by the Court

JENKINS, Presiding Judge.

[I] 1. The pleadings and questions involved in these cases being the same, and the cases being briefed and argued together, they are so determined.

2. A suit, otherwise removable from a state court to the district court of the United States for the proper district under section 28 of the federal Judicial Code (28 USCA § 71), may be so removed when in the suit "there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them." The word "controversy" is to be construed as equivalent to the phrase "matter in controversy." Old Dominion Oil Co. v. Superior Oil Corporation (D. C. Ky.) 283 F. 636, 638. "A controversy [is] involved, in the sense of the statute, whenever any property or claim of the parties capable of pecuniary estima tion [is] the subject of litigation and [is] presented by the pleadings for judicial determination." Hilton v. Dickinson, 108 U. S. 165, 2 S. Ct. 424, 27 L. Ed. 688.

3. While it is the general rule, in determining whether such a separable controversy exists as will authorize a removal, that a cause is not removable "if the defendants are charged with direct or concurrent or concerted wrongful action" (Gableman v. Peoria R. Co., 179 U. S. 335, 21 S. Ct. 172, 45 L. Ed. 220; Chesapeake R. Co. v. Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121), that "if plaintiff allege that the concurrent negligence of both defendants caused his injury, he may join them in one action; and if he does so the fact that he might have sued them separately furnishes no ground for removal, " it being "enough * * * if the concurrent acts of negligence of each contributed to the Injury inflicted upon the plaintiff" (Chicago Ry. Co. v. Dowell, 229 U. S. 102, 111-113, 33 S. Ct. 684, 685, 57 L. Ed. 1090), and the test applied under some of the decisions is merely, "Does the declaration state a good cause of joint liability under the state laws, " and if it does, "the case is not separable" (Baker v. Jacksonville Traction Co. [D. C. Fla.] 247 F. 718, 720, and see, also, Beal v. Chicago R. Co. [D. C. Mo.] 298 F. 180; American Bridge Co. v. Hunt [C. C. A. Ohio] 130 F. 302); yet the rule adopted by the Supreme Court of this state, cited with approval and followed by the United States Court for the Northern District of Georgia, is that, "although there may, in a suit against two or more defendants, one of whom is a nonresident, be charges of concurrent negligence against all, yet if there be also a distinct charge of negligence against the nonresident 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...