Fowlkes v. Ray-o-vac Co

• Decision Date: 24 December 1935
• Docket Number: No. 24923.,24923.
• Citation: 183 S.E. 210,52 Ga.App. 338
• Parties: FOWLKES . v. RAY-O-VAC CO. et al.
• Court: Georgia Court of Appeals

52 Ga.App. 338

183 S.E. 210

FOWLKES .

v.RAY-O-VAC CO. et al.

No. 24923.

Court of Appeals of Georgia,

Division No. 2.

Dec. 24, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by A. M. Fowlkes, as next friend, etc., against the Ray-O-Vac Company and another. An order was entered directing the removal of the cause to the federal court, and plaintiff brings error.

Reversed.

Statement of Facts by Jenkins, Presiding Judge.

The mother as next friend of an alleged emancipated minor brought a suit for personal injuries against a nonresident corporation and the resident father of the minor. The minor and her mother also were residents of Georgia. The petition alleged that the minor was injured while riding as a gratuitous guest of the defendants in North Carolina; and that the injury was occasioned by reason of the father's gross negligence, as the actual tort-feasor, in violating motor vehicle statutes of that state and in other alleged acts. It was sought to hold the corporation liable for the acts of the father solely because he was driving the car "in the scope of his employment and in the furtherance and benefit of the business" of the corporation. It was stated that the minor "at the time of receiving the aforesaid described injuries was emancipated, and is now emancipated at the time of the filing of this action"; that she was capable of earning and actually earning $60 a month, had herself expended a named amount for medical services and hospital expense, and that her injuries had disabled her from the performance of her work. The nonresident corporation filed a petition for removal to the federal court, which, besides the usual averments of federal jurisdiction, set forth that the joining of the defendant father was not made in good faith, but was a mere pretense and device to defeat the lawful jurisdiction of the courts of the United States, because the petition on its face showed that it was brought in tort by a married woman as next friend of her minor daughter against her husband, the father of the minor; that under the common law, a wife could not sue even as next friend; that a minor could not sue a father; and that this suit against husband and father was prohibited by public policy at common law and under the laws of Georgia and of North Carolina, where the accident occurred. Plaintiff assigns error on the order directing the removal of the cause. Defendant in error, the nonresident corporation, moves to dismiss the writ of error, on the ground that the filing of its petition for removal and bond ipso facto removed the cause without order of the state court, end; ing its further jurisdiction, that this court is without jurisdiction to entertain a bill of exceptions from such order, and on the further ground that the order was correct under the contentions in its petition for removal.

Clifford Hendrix and Hendrix & Buchanan, all of Atlanta, for plaintiff in error.

.Bryan, Middlebrooks & Carter and John A. Dunaway, all of Atlanta, for defendants, in error.

Syllabus Opinion by the Court

JENKINS, Presiding Judge.

"1. 'Before surrendering, upon a petition for removal into the federal court, its jurisdiction over a pending case, the state court must have before it a petition which, taken in connection with the record, sets out all the facts necessary to show a right of removal on the part of the petitioner. Final decision by the superior court upon the sufficiency of the petition is subject to re-view' by the proper appellate court of the state. * * * The state court has no jurisdiction to try an issue of fact made by a petition to remove a case from the state court to the federal court. * * * [It] 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." Thompson v. Pan-American Petroleum Corp., 46 Ga.App. 791 (1-3), 169 S.E. 270, 271, and cit. Questions of law, involving the final surrender of jurisdiction by a court of this state, are determinable by this court.

2. "In the case of a tort which gives rise to a joint and several liability, the plaintiff has an absolute right to elect, and to sue the tortfeasors jointly if he sees fit." Where a cause of action for concurrent negligence is so stated in a petition, without any allegation of a distinct act of negligence by a nonresident codef endant, the latter's petition for removal to a federal court, merely traversing the averments of the petition, or stating conclusions of law without supporting facts that the joinder of the resident defendant was fraudulent, fictitious, or not in good faith, will not vacate the jurisdiction of the state court. Thompson v. Pan-American Petroleum Corp., supra (headnotes 4, 6); Postal Telegraph-Cable Co. v. Puckett, 24 Ga.App. 458 (5-7), 101 S.E. 397; Goodwin v. C. & W. C. Ry. Co., 49 Ga.App. 265, 175 S.E. 263. In Armour & Co. v. Bowden, 50 Ga.App. 476 (3, 4), 178 S.E. 394, the petition showed separate acts of negligence...