Postal Telegraph-Cable Co. v. Puckett
| Decision Date | 19 November 1919 |
| Docket Number | 10482. |
| Citation | 101 S.E. 397,24 Ga.App. 458 |
| Parties | POSTAL TELEGRAPH-CABLE CO. v. PUCKETT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In an action for injuries to an employé occasioned while working in close proximity to a high-powered electric wire, the declaration alleged that the plaintiff, an employé of the defendant corporation, while "in charge and control of" and "working under the direction" of the defendant's foreman, owing to the joint negligence of the defendant corporation its foreman in failing to provide the plaintiff with a reasonably safe and suitable place in which to work and reasonably safe and suitable instrumentalities and appliances, and in failing to give him proper warning and instructions as to the danger to which he was subjected in the work which he was ordered and directed to perform, was injured, etc. Held, that the declaration alleged joint negligence on the part of the defendants--the corporation and the foreman.
Neither of the words "superintendent" or "foreman" necessarily import that the one to whom they are applied is the alter ego of the defendant; but where one designated as such has authority to employ laborers and is in charge of the work being done, he is a vice principal of the master. Moseley v. Schofield's Sons Co., 123 Ga. 197, 200, 51 S.E. 309; Ingram v. Hilton & Dodge Lumber Co., 125 Ga. 658, 660, 54 S.E. 648, and numerous cases there cited.
If upon the face of the declaration the action is joint, for the purpose of determining the right of removal the cause of action must be deemed to be joint. "A defendant has no right to say that an action shall be several which a plaintiff elects to make joint." Louisville & Nashville R. Co. v. Ide, 114 U.S. 52, 5 S.Ct. 735, 29 L.Ed. 63. See, also, Southern Ry. Co. v. Miller, 1 Ga.App. 616, 57 S.E. 1090.
Where a joint suit is brought by a resident of this state against a foreign corporation doing business in this state, and against one of its employés who resides in this state, for an injury alleged to have resulted from negligent acts committed by both defendants, the suit is not removable by the corporation as a separable controversy. Southern Ry. Co. v. Miller supra.
"The right of a nonresident defendant to remove the cause cannot be defeated by the fraudulent joinder of a resident defendant; but the defendant seeking removal must allege facts [italics ours] which compel the conclusion that the joinder is fraudulent; merely to apply the term 'fraudulent' to the joinder is not sufficient to require the state court to surrender its jurisdiction." Chesapeake, etc., R. Co. v. Cockrell, 232 U.S. 154 34 S.Ct. 281, 58 L.Ed. 544. See, also, Russell v Champion Fibre Co., 214 F. 963, 131 C.C.A. 259.
A declaration which alleges a cause of action against joint defendants, one a resident of Georgia and the other a resident of Delaware, is conclusive as against the nonresident defendant's right to remove the cause, where the petition to remove contains no statement of facts from which the court can draw a conclusion that the joinder is not only in bad faith but without right. Russell v. Champion Fibre Co., supra.
In the instant case the declaration sets out a cause of action against two joint tort-feasors, and the petition for removal which contains several excerpts from evidence adduced on another trial in another court, failing to show that the resident defendant was made a party fraudulently and in bad faith, the refusal of the trial judge to pass an order removing the case to the federal court was not erroneous.
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.
In employee's action for injury while working near a high-powered electric wire, a declaration, alleging that plaintiff, while "working under the direction" of defendant's foreman, owing to the joint negligence of defendant and its foreman in failing to provide a reasonably safe place to work and reasonably safe appliances, and in failing to give warning and instructions as to danger, was injured, etc., alleged joint negligence of defendant and its foreman.
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 following 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 employés 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 employés 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).
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 F. 1010 (1); Alabama Great Southern Ry. Co. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; Wecker v. National Enameling Co., 204 U.S. 176, 27 S.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...
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