Postal Tel.-cable Co v. Puckett
| Decision Date | 19 November 1919 |
| Docket Number | (No. 10482.) |
| Citation | 101 S.E. 397 |
| Parties | POSTAL TELEGRAPH-CABLE CO. v. PUCKETT. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Foreman; Superintendent.]
Error from Superior Court, Muscogee County; G. H. Howard, Judge.
Action by J. G. Puckett against the Postal Telegraph-Cable Company and another. From an order denying the petition of the Postal Telegraph-Cable Company for removal of the cause to the federal court, it brings error. Affirmed.
This suit was filed in the superior court of Muscogee county against the Postal Telegraph-Cable Company and one M. C. Welch as joint tort-feasors. The telegraph company, being a nonresident corporation, sought to remove the cause to the federal court, its petition for removal being based on two grounds: (1) That a separable controversy was stated in plaintiff's declaration; and (2), that there was a fraudulent joinder of the defendant Welch. The trial judge, to whom the petition for removal was addressed, passed an order disallowing the removal, and the defendant corporation excepted.
Substantially, but somewhat abbreviated, the plaintiff's declaration alleged the follow-ing facts: That at the time he was injured he was in the employ of the defendant corporation at Columbus, Ga., having gone there from Atlanta, Ga., the day before he was hurt; that he, together with other employes of the defendant corporation, was changing certain wires from one side of the street to the other to comply with the requirements of an ordinance of the city of Columbus, when he received his injuries, and that in order so to change the wires he was ordered and directed to climb a telegraph pole of the defendant; that it was approximately 50 feet high, and had telegraph wires strung only a few inches from the top; that the Columbus Power Company built a line of poles to which was strung a high-powered wire carrying 11, 000 volts of electricity; that the poles of the Columbus Power Company bearing this high-powered wire were about equidistant from the defendant's wire telegraph pole, and that the high-powered wire was strung only 5 1/4 inches above the telegraph wires, crossing them at right angles and only about 3 feet from the telegraph pole upon which the plaintiff was working when injured. It is further alleged that the rules of the defendant corporation required that no high-powered wire or wires should be strung at a nearer distance above any of its telegraph wires than 42 inches. The declaration alleged also that the defendant Welch ordered the plaintiff to climb the pole in question for the purpose of cutting down certain wires on the cross-arm at the top of the pole, without notifying him that the high-powered wire was in dangerous proximity to the telegraph wires which he was directed to cut. The declaration also sets out that the negligent acts of the defendant corporation were committed through the defendant Welch, its district foreman for the state of Georgia, who it is alleged was the alter ego of the defendant corporation, having then and there general supervision and direction of the petitioner as well as of the other employes of the defendant.
T. T. Miller, of Columbus, and Anderson, Rountree & Crenshaw, of Atlanta, for plaintiff in error.
Ed. Wohlwender, of Columbus, and Atkinson & Born, of Atlanta, for defendant in error.
SMITH, J. (after stating the facts as above). [3-7] There is but one question presented, to wit, the correction of the ruling upon the petition for removal to the federal court. Whether an action is joint or several is a question for the state court to determine. Rountree v. Mt. Hood R. Co. (D. C.) 228 Fed. 1010 (1); Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Wecker v. National Enameling Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. Ed. 430, 9 Ann. Cas. 757. It is well settled that a plaintiff may elect his own method of attack (5 Fed. Stat. Ann. p. 138, and numerous cases there cited); and if "upon the face of the declaration—the only pleading in the case—the action Is joint, for the purpose of determining the right of removal the cause of action must be deemed to be joint." Southern R. Co. v. Miller, 1 Ga. App. 616, 57 S. E. 1090. The test of separability has been stated as follows:
"In order to justify such removal, on the ground of a separate controversy between citizens of different states, there must, by the very terms of the statute [Act of March 3, 1875, c. 137, § 2 (18 Stat. 470 [U. S. Comp. St. § 1010])], be a controversy 'which can be fully determined as between them, ' and by the settled construction of this section the whole subject-matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit." 5 Fed. Stat. Ann. (2d Ed.) 123.
See, also, Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823; Corbin v. Van Brunt, 105 U. S. 576, 26 L. Ed. 1176; Fraser v. Jennison, 106 U. S. 191, 1 Sup. Ct. 171, 27 L. Ed. 131; Winchester v. Loud, 108 U. S. 130, 2 Sup. Ct. 311, 27 L. Ed. 677. To say the least, the case must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more states on one side and citizens of other states on the other, which can be fully determined without the presence of any of the other parties to the suit as it has been begun. This rule applies to torts as well as to contracts. 5 Fed. Stat. Ann. (2d Ed.) 133, and numerous cases there cited.
Applying the above-stated test to the declaration under consideration, we hold the action joint and not several, since the same acts of negligence are charged against both defendants. In other words, no act of negligence is charged against either of the defendants which is not charged against the other. The case of Russell...
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