Slate v. Hutcherson
| Decision Date | 19 October 1926 |
| Docket Number | No. 2520,2521.,2520 |
| Citation | 15 F.2d 551 |
| Parties | SLATE et al. v. HUTCHERSON (two cases). |
| Court | U.S. Court of Appeals — Fourth Circuit |
A. G. Fox, of Bluefield, W. Va., and Graham Sale, of Welch, W. Va. (J. Randolph Tucker, Joseph M. Sanders, Jr., and Joseph M. Sanders, all of Welch, W. Va., on the brief), for plaintiffs in error.
Joseph M. Crockett, of Welch, W. Va. (Bernard J. Pettigrew, of Charleston, W. Va., on the brief), for defendants in error.
Before WADDILL and PARKER, Circuit Judges, and SOPER, District Judge.
Two cases, growing out of the same automobile accident, were by consent tried at the same time, upon the same evidence, in the court below. Dorcas Akers Hutcherson was killed in the accident, and the administrator of her estate was plaintiff in one action, while Willie Hutcherson, an infant, who was injured at the same time, was plaintiff by next friend, in the other. The plaintiff in each case was a citizen of West Virginia. The defendants in the two cases were the same, namely, G. L. Slate, a citizen of West Virginia, who was the owner of an automobile touring car, in which both of the injured persons were passengers, and Appalachian Power Company, a corporation of Virginia, the owner of a motor truck. It was alleged that the accident was caused by the careless operation of the two motor vehicles. The jury found for the plaintiff in each case against both defendants, and the cases have been brought together to this court on writs of error in one record. A number of assignments of error are alleged in each case, but, in the view we take, the determination of one assignment of error filed by Slate in each case will dispose of both, and, for convenience, the matter will be discussed as if only one case were before the court.
The suit was originally brought in the circuit court of McDowell county, W. Va., and was subsequently removed to the District Court of the United States for the Southern District of West Virginia. The petition for removal was filed by the Power Company, and was based on the ground of diverse citizenship. It stated that, although the plaintiff and Slate were both citizens of West Virginia, the Power Company was a citizen of Virginia, and that the plaintiff's cause of action against it, as alleged in the declaration, was separate and distinct from the cause of action against Slate. After the case was removed, and the transcript of record had been filed in the federal court, both the plaintiff and Slate moved the court to remand the case to the state court, and, before the trial of the case, Slate renewed his motion to remand; but all of the motions were overruled. The ruling of the court on these motions is the subject of the assignment of error to be discussed.
Section 28 of the Judicial Code (Comp. St. § 1010) provides that, when there is pending in a state court a civil suit of which the District Courts of the United States are given original jurisdiction, and in which "there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district."
It is settled beyond dispute that, when a separable controversy exists and is removed to the federal court under this statute, the effect of the removal is to transfer the entire cause. Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514; Connell v. Smiley, 156 U. S. 336, 15 S. Ct. 353, 39 L. Ed. 443. So that, if the case against the Power Company was properly removed, the case against Slate was carried with it. Since the plaintiff in the suit and Slate are citizens of the same state, the case was not removable for diversity of citizenship, unless a separable controversy as to the Power Company exists.
The Power Company claims (and the plaintiff now joins with it, although originally...
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...that such joinder of defendants by plaintiff, on the filing of the original complaint, would have defeated the jurisdiction. Slate v. Hutcherson, 4 Cir., 15 F.2d 551. It is equally clear that the situation is no different merely because one of the defendants is brought into the case by subs......
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