Opinion
31932.
DECIDED MARCH 19, 1948. REHEARING DENIED APRIL 1, 1948.
Removal to U.S. Court; from Bartow Superior Court — Judge Paschall. December 12, 1947. (Application to Supreme Court for certiorari.)
Moise, Post Gardner, Graham Wright, Neel Ault, for plaintiff in error.
William A. Ingram, Matthews, Long Moore, contra.
In order to entitle a nonresident joint defendant to remove a case to the Federal court as to such party, in accordance with Title 28, Section 71, U.S.C.A., there must be alleged in the petition of the plaintiff a separable and distinct controversy between the moving party and his adversary, which is not dependent, as a part of the proximate cause, upon the negligence alleged against other resident defendants who are joined in the original suit with such nonresident party. See Title 28, Section 41 (1), and Title 28, 71, U.S.C.A.; Western Union Telegraph Co. v. Griffith, 104 Ga. 56 ( 30 S.E. 420); Southern Ry. Co. v. Edwards, 115 Ga. 1022 ( 42 S.E. 375); Pearl Assurance Co. Ltd. v. Bernath, 185 Ga. 737 ( 196 S.E. 389); McKenzie v. Standard Oil Co., 31 Ga. App. 615 ( 121 S.E. 847); Pan-American Petroleum Corp. v. Williams, 45 Ga. App. 490 ( 165 S.E. 473); Armour Co. v. Bowden, 50 Ga. App. 476 ( 178 S.E. 394); Powell v. Young, 56 Ga. App. 613 ( 193 S.E. 358); General Motors Sales Corp. v. Jordan, 62 Ga. App. 176 ( 8 S.E.2d, 574); Southeastern Greyhound Lines v. Estes, 68 Ga. App. 248 ( 22 S.E.2d 679); American Agricultural Chemical Corp. v. Jordan, 48 Ga. App. 493 ( 173 S.E. 488); Georgia Carolina Brick Tile Co. v. Merry Bros. Brick c. Co., 75 Ga. App. 637 ( 44 S.E.2d 63).
DECIDED MARCH 19, 1948. REHEARING DENIED APRIL 1, 1948.
Mrs. Virginia A. Gilstrap brought an action in the Superior Court of Bartow County against Southeastern Greyhound Lines Inc., a corporation created and existing under and by virtue of the laws of Kentucky, and having an office, agent, and place of business in Bartow County, which action also joins as defendants M. D. Hamilton and George Gary Hamilton, residents of Fulton County, Georgia. Her action is based upon the wrongful death of her daughter, Jane Gilstrap, 3 years, 7 months of age, who resided with her. Her petition alleges: that at approximately 3:20 in the afternoon of Sunday, May 25, 1947, the said Jane Gilstrap was being driven in a Buick automobile on U.S. Highway 41 at a point about 2 miles north of Kennesaw, Georgia, by James A. Gilstrap, father of said child, in a southerly direction and at a rate of 30 miles per hour on the right of the center of said highway; that a Greyhound bus of the defendants, Southeastern Greyhound Lines Inc., at the time being driven by an agent of said defendant, was proceeding downgrade in a northerly direction on said highway at a speed of 60 or 70 miles per hour and partially out of control, several hundred yards from the Buick car in which Jane Gilstrap was riding and meeting it; that between said bus and said Buick car was an automobile being driven in a southerly direction by the defendants, M. D. and George Gary Hamilton, over the center line of said road so that it failed to yield one-half of the travel roadway at the time to the Greyhound bus which it was meeting, the roadway being of sufficient width, grade, and character so that said Hamiltons could have and should have yielded one-half of said roadway to said bus; that the bus and the car driven by the Hamiltons collided at a point some 80 to 100 feet south of the point where the car then was in which the said Jane Gilstrap was riding; that, after said collision between said bus and the Hamilton's car, said bus became more completely out of control as it continued to approach the car in which Jane Gilstrap was riding; that James A. Gilstrap pulled his automobile off the pavement and onto the shoulder of the road and into the very edge of the ditch on the right-hand side of the highway in an effort to escape the approaching Greyhound bus; that, notwithstanding this precaution, said bus crashed into said car, killing Jane Gilstrap instantly. The petition charges that the proximate cause of the death of Jane Gilstrap was the joint negligence of all the defendants as outlined therein. Paragraph 18 of the petition is as follows: "(a) The acts of negligence of the defendants, George Gary Hamilton and M. D. Hamilton, consisted of failing to yield one-half of the travel roadway to the Greyhound bus it was meeting at the time, contrary to the provisions of Georgia Code, section 68-303 (c) and Georgia Code, section 68-305, the said vehicle being driven by the said Hamiltons at said time on a curve, and the said Hamiltons having failed to reduce the speed of said vehicle in violation of Georgia Code, section 68-303 (b). (b) This negligence on the part of the Hamiltons contributed to said accident because, by taking more than one-half of the travel roadway, said roadway being what is known as a black-top road which was wet at the time, and said Greyhound bus, being a large vehicle of 8 or more feet in width and 15 or more feet in height and weighing several thousand pounds, did not have room at the speed at which said bus was traveling at said time to pass the Hamilton car to the right thereof and on the east side thereof, so that the said bus struck the Hamilton car causing the said bus to go more completely out of control and run into the car being driven by the said Gilstrap, in which the said Jane Gilstrap was riding at the time of her death."
The defendant, Southeastern Greyhound Lines, filed its petition for the removal of said suit to the Northern District of Georgia, Rome Division of the United States District Court before answering or otherwise making an appearance in the superior court and before required to do so, in which petition it alleged facts as follows: that it is a resident of Kentucky, and that its joint defendants, M. D. and George Gary Hamilton, are residents of Georgia; that the amount in controversy is in excess of $3000; that the suit, as between the defendant Southeastern Greyhound Lines Inc., and the defendants, M. D. and George Gary Hamilton, presents a separable controversy, because the petition of the plaintiff alleges a complete cause of action against it and against them without alleging any acts charging the same negligence; that the acts of negligence alleged against it are totally and wholly independent of the acts alleged against them. The petition proceeds to point out the specific acts of negligence charged against it and the specific acts charged against the Hamiltons. The petition is properly sworn to and accompanying it is the required bond.
Upon the hearing of the petition for removal, the trial judge entered a judgment denying the same, and this judgment is assigned as error.
All of the decisions of the appellate courts of this State cited in the briefs of counsel for both sides, as well as one other decision of this court, are cited in support of the principle of law enunciated in the headnotes. All of said decisions either directly or indirectly support this principle; for, it matters not whether a case was held to be removable or not removable, according to the record of each such case, the principle of law set out in the headnote is the yardstick by which each case must be measured in order to determine its removability.
If the petition of the plaintiff alleges acts of negligence against such joint nonresident defendant that in and of themselves constitute a cause of action against such defendant, separable from and in no way dependent upon the acts of negligence alleged against the resident joint defendants, the cause of action is separable and the case is removable as to such joint nonresident defendant. On the other hand, if the acts of negligence charged against such joint nonresident defendant are such that they are interwoven with and dependent upon the acts of negligence charged against the resident joint defendants, so that the negligence of all is required to constitute the proximate cause, the case is not removable as to the nonresident joint defendant. There are many Federal cases which support this reasoning. However, none are cited, since the test is what the Georgia law provides relative to joint actions. See Armour Co. v. Bowden (supra). Therefore the Federal authorities in this State are merely persuasive. They are not cited here, for the further reason that the question of whether or not the instant case is removable is clearly established by the decisions of our own appellate courts which are cited.
In the instant case, construing the petition of the plaintiff as a whole, it alleges in substance certain negligence against the defendants, including the charge that the nonresident defendant's bus was being driven by the agent of the defendant company in a northerly direction on said highway at a speed of 60 or 70 miles per hour and partially out of control when it was at a point several hundred yards from the car in which the deceased was riding; that, while being thus driven, it met the automobile being driven by the resident joint defendants at a point about 80 to 100 feet in front of the car in which the deceased was riding; that, at the meeting place of said vehicles on the highway, the car being driven by the resident joint defendants was failing to yield one-half of the traveled roadway to the bus; that, on account of the speed at which the bus was being driven, the curve in the road, its slippery surface, its width and character, the width, height, length, and weight of the bus, the fact that it was particularly out of control then, and the fact that the other joint defendants were over the center of the highway with their car, caused the bus and the car being driven by the resident joint defendants to collide, and this caused the bus to swerve to its left-hand side of the highway and collide with the car in which the deceased was riding. Thus, the concurring negligence of the joint nonresident defendant and the joint resident defendants is alleged to be so interwoven and dependent upon each other as to require the negligence of both to constitute the proximate cause. Let us suppose that the car which the Hamiltons were driving had continued over the center line and some 80 to 100 feet in front of the car in which the deceased was riding, but did not meet and collide with the defendant's bus. Certainly, under such circumstances, the collision resulting in the death of Jane Gilstrap would not have occurred. Then let us suppose that the defendant's bus, in meeting the car in which the deceased was riding, was being operated at the time partially out of control and at the rate of 60 or 70 miles per hour, but there was no car being operated over the center line between it and the car in which the deceased was riding. There is nothing in the petition of the plaintiff in the instant case that would indicate that a collision would have thus resulted between the bus and the car in which the deceased was riding. It is true that a bus being operated in the negligent manner alleged might have collided with the car. On the other hand, it might have run into the ditch on the opposite side of the road. Or complete control of it might have been regained and its speed reduced without any mishap. Therefore it follows that, according to the allegations of the plaintiff's petition, the concurrent negligence of the nonresident joint defendant and that of the resident joint defendants was required to constitute the proximate cause of the collision between the bus and the car in which Jane Gilstrap was riding, resulting in her death. See Western Union Telegraph Co. v. Griffith, 104 Ga. 56, Southern Ry. Co. v. Edwards, 115 Ga. 1022, Pearl Assurance Co. Ltd. v. Bernath, 185 Ga. 737, McKenzie v. Standard Oil Co., 31 Ga. App. 615, Pan-American Petroleum Corp. v. Williams, 45 Ga. App. 490, Armour Co. v. Bowden, 50 Ga. App. 476, Powell v. Young, 56 Ga. App. 613, General Motors Sales Corp. v. Jordan, 62 Ga. App. 176, Southeastern Greyhound Lines v. Estes, 68 Ga. App. 248, and American Agricultural Chemical Corp. v. Jordan, 48 Ga. App. 493, supra. The plaintiff in error relies on Southern Ry. Co. v. Edwards, supra, to sustain its position that the case is a separable controversy and removable as to it. There the case was brought against the railway company and its engineer. An act of negligence charged to the railway company was that of providing a careless and incompetent engineer. It was held that this constituted a separable cause of action against the railroad company, because the resident defendant engineer did not participate in this negligence and he, being the agent of the principal, his negligence was imputed to the principal. What is said here as to Southern Ry. Co. v. Edwards, supra, applies in like manner to Pan-American Petroleum Co. v. Williams, supra, also relied upon by the plaintiff in error. In Pearl Assurance Co. Ltd. v. Bernath, supra, also relied upon by the plaintiff in error, a suit on a policy contract, against a nonresident principal and a resident agent, was held to be a separable controversy because, since the principal was disclosed, the agent was not liable and a cause of action independent of the resident agent was stated in the petition against the principal. McKenzie v. Standard Oil Co., supra, also relied upon by the plaintiff in error, an action against a nonresident corporation and a resident agent, was held to be a separable controversy and removable, because the negligence charged to the nonresident company was selling the product alleged to have caused the injury; the petition further alleging that the agent's duties consisted of driving the principal's trucks and wagons in the delivery of the product, and the theory there being that the agent could not have participated in the selling charged against the nonresident principal, but again the relationship of principal and agent was present. In Armour Co. v. Bowden, supra, the acts of negligence charged to the nonresident defendant consisted of the manner in which the product causing injury was packed, and the negligence charged to the merchant who sold it consisted of keeping the product for sale and in failing to return it to the manufacturer. It was held to be a separable controversy, because the acts of negligence obviously were separate and distinct. In Powell v. Young, supra, the acts of negligence charged against the nonresident defendant were leaving cars parked across the railroad crossing, and those charged to the resident defendant were driving the car in which the plaintiff was riding as a guest at night into the same; it being charged that the driver of the car could not have seen the cars because his lights were insufficient to penetrate a street light which blinded him. The decision in that case upholds the principle of law enunciated in the headnote herein, because it says in the second division thereof that the acts of negligence alleged against the nonresident defendant were separate and distinct and sufficient within themselves to give rise to a cause of action.
The case here, as shown by the petition, is one of joint and several liability against the nonresident joint defendant and the resident joint defendants, and the doctrine of respondent superior can in no way apply so as to impute negligence from one to the other. It was optional with the plaintiff whether to sue them jointly or severally. See Western Union Telegraph Co. v. Griffith, supra. The plaintiff having elected to sue jointly, and the petition not having alleged a separable and distinct controversy between the moving party and its adversary, which can be lawfully determined as between them without presenting also the negligence of the resident joint defendants in order to make out a case, the judgment of the trial court overruling and denying the petition to remove is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.