Goodwin v. Charleston & W.C. Ry. Co.
| Decision Date | 18 June 1934 |
| Docket Number | 23712. |
| Parties | GOODWIN v. CHARLESTON & W. C. RY. CO. et al. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Petition to remove suit for injuries received while repairing railroad car, brought against nonresident railroad and resident general foreman, who, plaintiff alleged, assigned him to his work and was in charge thereof, held not to authorize removal on ground of fraudulent joinder because alleging that foreman had general supervision over railroad yards in two states, where petition for removal further stated that foreman was actually present in yard at time of injury.
It is not office of petition for removal to raise issues of fact by traversing facts alleged in plaintiff's petition.
Where petition to remove on ground of fraudulent joinder of nonresident defendant and resident codefendant did not show that plaintiff actually knew of independent facts set up in petition to remove, but merely alleged that plaintiff knew or should have known thereof, petition did not authorize removal, where plaintiff could not be deemed cognizant of such independent facts as matter of law.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Suit by N. L. Goodwin against the Charleston & Western Carolina Railway Company and another. An order was entered directing the removal of the cause to the federal court, and plaintiff brings error.
Reversed.
Bussey & Fulcher and Pierce Bros., all of Augusta, for plaintiff in error.
Cumming & Harper, of Augusta, for defendant in error.
Syllabus OPINION.
In this petition to remove it is contended that the joining of the resident defendant with the nonresident defendant was fictitious and fraudulent and made merely for the purpose of preventing removal. The plaintiff's petition alleged that he was injured while doing repair work in the ceiling of a car in a railroad yard, on account of the negligent moving of the car; the injury resulting in the loss of an eye. The action is brought against the nonresident railway company and its resident general foreman, who it is alleged had charge control, and supervision of all employees working in said yard, having the right to employ and discharge and direct them in their work; that among his duties was that of protecting the various employees while engaged in their work that at the time of the injury, the plaintiff had been assigned by said foreman to do the particular work on which he was then engaged; that the foreman at the time of the injury was in charge of the men working in the vicinity of the car in which the plaintiff had been ordered to work; that it was the duty of such foreman to see that no one moved the car while the plaintiff was thus engaged in the work to which he had been assigned by the foreman himself; but that such foreman failed to perform such duty, "in that he stood by and negligently permitted the moving of said car in which plaintiff was working without giving plaintiff any warning or notice that said car was about to be suddenly moved." In the petition to remove it is set forth as an independent fact, not already appearing from the plaintiff's petition and therefore not merely by way of traverse, that the duties of the general...
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