Beaver Dam Cranberry Co. v. Pa. R. Co.

• Decision Date: 10 October 1940
• Docket Number: No. 53.,53.
• Parties: BEAVER DAM CRANBERRY CO. v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

15 A.2d 613

125 N.J.L. 369

BEAVER DAM CRANBERRY CO.

v. PENNSYLVANIA R. CO.

No. 53.

Court of Errors and Appeals of New Jersey.

Oct. 10, 1940.

Appeal from Supreme Court.

Action by Beaver Dam Cranberry Company against the Pennsylvania Railroad Company, impleaded, etc., for damages allegedly caused by the destruction of plaintiff's cranberry bogs and other property by fire. From a judgment denying a motion by the Pennsylvania Railroad Company for withdrawal of a juror in order that case might be removed to United States District Court for trial after a motion for nonsuit as to defendant Arthur Adams was granted, the Pennsylvania Railroad Company appeals.

Affirmed.

James Mercer Davis, of Camden, for plaintiff-respondent.

John A. Hartpence, of Jersey City, (James R. Laird, Jr., of Jersey City, of counsel), for defendant-appellant.

BROGAN, Chief Justice.

The question raised by this appeal is whether the trial court erred in refusing to order the removal of the issue for trial from the State to the Federal court after the plaintiff, having put in its proof at the trial of the cause, had rested. Suit was brought by the plaintiff against the railroad company, a foreign corporation, and one Arthur Adams, a resident of this State, who was joined as a defendant on the averment that he was the servant or agent of the railroad company, in charge of the work undertaken by the railroad company at the time the plaintiff's damages were suffered. The complaint, alleging joint negligence, specified in the case of Adams that he was employed by the non-resident railway corporation to supervise the work of a group of railway employees, assigned to the task of burning up underbrush, weeds and the like, on the lands of the railroad company; that through negligence the fire was not confined to the lands of the railroad company but was permitted to escape and spread over to the property of the plaintiff, destroying its cranberry bogs, vines and other plants.

At the end of the plaintiff's case a motion was made for a non-suit as to the defendant, Adams. The argument for the nonsuit was met by the plaintiff's counsel who said: "The testimony is that he (Adams) was the boss of the men." The trial court did not agree with that statement. Further discussion ensued between court and plaintiff's counsel. Finally plaintiff's counsel said: "I still think there is testimony (i. e., that Adams was in charge) but if the court takes a different view I don't think it is important whether Adams is in the case or not." The court then granted the motion for nonsuit as to Adams and judgment accordingly was entered. Motion for nonsuit as to the defendant railroad company was denied. Defendant's counsel then stated that since Adams was out of the case as a party defendant, the suit was between the plaintiff, a New Jersey corporation, and the Pennsylvania Railroad, a corporation of the State of Pennsylvania; that there was "complete diversity" of citizenship, and request was made for the withdrawal of a juror in order that the case might be removed to the United States District Court for trial. The court denied this motion and the sole question is whether the trial court erred in this particular by retaining jurisdiction of the cause in the face of the motion to remove it to the Federal court.

The cause of action as pleaded was, in the absence of fraudulent joinder, non-removable on the face of the complaint. Such a case, however, may, although not removable at the time fixed by the procedural statute (Jud.Code Sec. 29, 28 U.S.C.A. § 72), i. e., at any time before the defendant is required to answer the complaint, subsequently become removable by amendment to the complaint or other action which would make the case one of complete diversity of citizenship between the parties, assuming of course, as here, that the requisite jurisdictional amount was involved. Cf. Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093. Here but for the joinder of Adams, a resident of this state, as a defendant, the non-resident defendant would have been entitled to have the cause removed to the Federal court by compliance with the procedural statu...