Postal Telegraph-Cable Co. v. Puckett

Smith, J. [After stating the foregoing facts.) There is but one question presented, to wit: the correctness 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., 228 Fed. 1010; 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. [461] Cas. 757). It is well settled that a plaintiff may elect his own method of attack (5 Fed. Stat. Ann. 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.” L. & N. R. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. ed. 63); Southern Ry. Co. v. Miller, 1 Ga. App. 616 (51 S. E. 1090). The test of separability has been stated a3 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as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit.” 5 Fed.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 (27 L. ed. 131); Winchester v. Loud, 108 U. S. 130 (2 Sup. Ct. 311, 27 L. ed. 677). To say the least, the ease 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 eases 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 ease of Russell v. Champion Fibre Co., 214 Fed. 963 (131 C. C. A. 259), is substantially parallel to the case under review. The plaintiff had the right to join in the same suit the Postal Telegraph-Cable Company, the master, and Welch, the foreman of that company. As to the right to join causes of action against employer and [462] employee, see Russell v. Champion Fibre Co., supra; Southern Ry. Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191); Southern Ry. Co. v. Miller, supra. However, if the master was not liable under what is commonly called the fellow-servant rule, there could be no legal joinder. In the ease under consideration the plaintiff and the defendant Welch were not fellow servants. In this State the character of the duties performed, whether the non-assignable duties of the master or not, has been adopted as the test of whether one is a fellow servant of an injured employee, rather than the grade of rank of the servants respectively. Moore v. Dublin Cotton Mills, 127 Ga. 610 (56 S. E. 839, 10 L. R. A. (N. S.) 772); Williams v. Garbutt Lumber Co., 132 Ga. 215, 231 (64 S. E. 65). While neither the word “superintendent” nor the word “foreman” necessarily imports that the one to whom these words are applied is the alter ego of the defendant, it was alleged that he had authority to employ laborers and was in charge of the work, and under repeated rulings of our Supreme Court such a person would be the vice-principal of the master. ' See Taylor v. Georgia Marble Co., 99 Ga. 512 (27 S. E. 768, 59 Am. St. R. 238); Woodson v. Johnston, 109 Ga. 454 (34 S. E. 587); 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). Now, if Welch could not be held individually liable for the resulting injury to the plaintiff, the suit would be merely a suit against the master, the Postal Telegraph-Cable Company; and, that company not being a domestic corporation, and the amount involved being more than $3,000, the case would be removable upon proper application. To determine this question we must look to plaintiff’s declaration to see if it charged Welch with any individual liability. Among other acts of negligence the declaration charged specifically that Welch ordered and directed the plaintiff to climb a certain telegraph pole and cut down certain wires strung to the cross-arm of the pole, without notifying him that a high-powered wire was in dangerous proximity to the wires he was ordered to cut. The failure to warn the plaintiff of the dangers to which he was thus exposed amounted to misfeasance on the part of the defendant Welch. “Misfeasance means the improper doing of an act which the agent might lawfully do; or, in other words, it is the performing of his duty to his principal ”in such a manner as to infringe [463] upon the rights and privileges of third persons. Where an agent fails to use reasonable care or diligence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. . . When once he enters upon the performance of his contract with his principal, and in doing so, omits or fails to take reasonable, care in the commission of some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf.” Southern Ry. Co. v. Sewell, 18 Ga. App. 552 (90 S. E. 54). We come now to the question whether or not there was a fraudulent joinder of the defendant Welch. The allegations contained in the petition to remove and the amendment thereto amount to no more than a traverse of the charge of negligence set out in plaintiff’s declaration, and consequently are wholly insufficient to raise an issue of fraudulent joinder of Welch as a codefendant. See, in this connection, Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131 (21 Sup. Ct. 67, 45 L. ed. 121); Chesapeake & Ohio R. Co. v. Cockrell, 232 U. S. 146, 154 (34 Sup. Ct. 278, 58 L. ed. 544); Chicago &c. R. Co. v. Dowell, 229 U. S. 102 (33 Sup. Ct. 684, 57 L. ed. 1090); Southern Ry. Co. v. Lloyd, 239 U S. 496 (36 Sup. Ct. 210, 60 L. ed. 402). In the Cockrell case, supra, it is said that it is not enough to assert that there was a fraudulent joinder of defendants but there must be “a statement of facts rightly engendering that conclusion,” and that “merely to traverse the allegations upon which the liability of the resident defendant is rested or to apply the epithet ‘fraudulent’ to the joinder will not suffice; the showing must he such as compels the conclusion that the joinder is without right and made in had faith." (Italics ours.) See also to the same effect the ruling made in Russell v. Champion Fibre Co., supra. From what is said above it is clear that the plaintiff had the right to join the telegraph company and Welch as joint defendants in the same suit, and that a joint cause of action and not a separable controversy is set out in his declaration, and that the petition and the amendment thereto, seeking to remove the cause into the Federal court, failed to allege sufficient facts to establish a fraudulent joinder. Judgment affirmed. Jenhins, P. and Stephens, J., concur.