1. "Although there may, in a suit against two or more defendants, one of whom is a non-resident, be charges of concurrent negligence against all, yet if there be also a distinct charge of negligence against the non-resident alone, sufficient in and of itself to give rise to a cause of action, the case is one involving a separable controversy between citizens of different States, and therefore removable to the proper United States court;" and "when removal is proper, the effect is to carry the entire case into the Federal court." The quoted rule is not inconsistent with the ruling that in an action for the homicide of the plaintiff's mother, brought against a resident automobile owner and driver and a non-resident automobile manufacturer, on the ground that the former negligently drove the car and the latter negligently constructed the car, the non-resident defendant is not entitled to removal of the cause from the State court to the Federal court, since the driver's negligence and the manufacturer's negligence concurred, and this concurrent negligence was the sole proximate cause of the death. The petition presented a joint, and not a joint and several, cause of action.
2. The facts that separate judgments may be entered against each defendant, and that separate defenses to a joint cause of action existed, do not create a "separable controversy" subject to removal from the State to the Federal court. There can be no "separable controversy" unless more than one cause of action is alleged.
3. "Respecting removability, Federal court should be as careful to avoid encroachment on State court's proper jurisdiction as it is vigilant in protecting its own jurisdiction; and doubt, if any, should be resolved in favor of remand to State court." Siler v. Morgan Motor Co., 15 F. Supp. 468, 469.
4. The judge did not err in refusing to remove the cause from the State to the Federal court.
DECIDED MARCH 15, 1940. REHEARING DENIED MARCH 30, 1940. Leonidas A. Jordan, by next friend and guardian, William Ben A. Johns Jr., brought suit against May W. Cannon, a resident, and the General Motors Sales Corporation (Buick Motor Division), a non-resident, for the homicide of the plaintiff's mother, alleged to have been caused by the concurrent negligence of the two defendants while she was riding as a guest in the automobile of Mrs. Cannon. It was alleged, that the non-resident defendant negligently constructed the rear-axle assembly of the automobile and was negligent in selling and delivering or *Page 177 causing to be sold or delivered to Mrs. Cannon said defective automobile, in failing to inspect the rear-axle assembly, and in failing to equip said automobile with any dependable rear-axle locking device which would serve as a lock and prevent the spreading of the rear wheels when the car was traveling at the speed as hereinafter alleged; and that Mrs. Cannon negligently drove the car in certain described particulars at a speed of more than seventy miles per hour. "Petitioner alleges that the gross negligence of the defendant Mrs. Cannon, in the particulars here specified, and the spreading of said wheels due to the negligence of the defendant General Motors Sales Corporation, in the particulars herein specified, concurred to cause the upsetting of said car and death of petitioner's mother. . . As the sole proximate result of the negligence of the defendant corporation, and the gross negligence of the defendant Mrs. May W. Cannon, as aforesaid, petitioner's mother was killed." "The plaintiff in error [General Motors Sales Corporation] filed a petition and bond for the removal of this case to the Federal court for the northern district of Georgia, Rome division, on the ground of a diversity of citizenship, and because the petition disclosed that there was a separable controversy between plaintiff in error and May W. Cannon," who were residents of different States, the amount involved in the suit, exclusive of interest and costs being largely in excess of $3000. On the hearing of this petition the court entered an order refusing to order a removal of the case. To this order exceptions were taken, and the case is now before this court on the sole question whether or not the petition set forth a separable controversy between May W. Cannon and the plaintiff in error as codefendants.
The Supreme Court, with reference to removal of causes to the Federal court, has said that "Although there may, in a suit against two or more defendants, one of whom is a non-resident, be charges of concurrent negligence against all, yet if there be also a distinct charge of negligence against the non-resident alone, sufficient in and of itself to give rise to a cause ofaction, the case is one involving a separable controversy between citizens of different States, and therefore removable to the proper United States court," and "when removal is proper, the effect is to carry the entire case into the Federal court." (Italics ours.) Southern Railway Co. v. Edwards, 115 Ga. 1022,1024 (42 S.E. 375). See Armour Co. *Page 178 v. Bowden, 50 Ga. App. 476 (178 S.E. 394). In other words, if the charge of negligence against the non-resident is distinct, and is sufficient in and of itself to give rise to a separate cause of action against the non-resident alone, the cause is removable. We recognize this rule, but we do not think it is inconsistent with the general rule that in order to remove a cause on the ground of a separable controversy there must be a controversy which is wholly between the plaintiff and the defendant seeking to remove, and which is capable of being finally determined between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit. There must be a separable and distinct controversy between the moving party and his adversary, which can be fully determined as between them; and the whole subject-matter must be capable of being so determined, and complete relief afforded as to the separate cause of action, without the presence of the other defendant who is joined in the original suit. Whether a cause is removable is of course determined solely from the plaintiff's petition; and "if the demand against the defendant seeking removal must involve the other defendant, there is no separable controversy. If the pleadings do not admit of separate and distinct trials, if the rights of the parties must be determined by the same rule, or on the same evidence, or if judgment must be for or against all the defendants, the cause is not removable." Lewis on Removal of Causes, 316, § 148. In remanding a case to the State court of Georgia, the Federal Circuit Court of Appeals, fifth district, said that in order for a severable controversy to exist, "the severable cause of action wholly between citizens of different States must be distinct from, disconnected with, and independent of the cause of action between citizens of the same State, and the elements of negligence constituting the separate controversies must be non-concurrent in causing the injury. This is clarified by reference to the history of the legislation. From 1789 to 1866 a separable controversy was not ground for removal. The act of 1866, 14 Stat. 306 (28 U.S.C.A. § 71, note), in express terms, authorized removal only of the separate controversy, leaving the remainder of the suit in the State court. The act of 1875, § 2, 18 Stat. 470, provided for removal of the entire suit, and there has been no change since that time in this provision." Tolbert v. Jackson, 99 Fed. 2d, 513, 515. *Page 179
No question of fraudulent joinder of a resident defendant is raised. The sole contention is that a separable action is alleged; that is, "that there can be a final determination of the controversy between it and the plaintiff without the presence of the other defendant as a party in the case." Differing from a fraudulent joinder, there can be no separable controversy in a suit unless more than one cause of action is alleged. In the present case there is but one ground of suit, one reason for process, one cause of action, one occasion for damages. It is for the wrongful death of the plaintiff's mother. This is denominated in our State as an action for homicide; and so far as the plaintiff is concerned, there is but one action based upon a single wrong. See Siler v. Morgan Motor Co., supra. It is true that the non-resident has a separate defense as to furnishing its joint defendant with an automobile with knowledge of its defective condition, but it is not in and of itself a controversy solely between citizens of separate States, and which can be fully determined between them. Taking the act of the nonresident by itself (that is, furnishing a defective automobile), it is not a controversy at all, because no injury was done, no cause of action arose, until the accident happened. The furnishing of the defective automobile and placing it in general use in a dangerous and unsafe condition for its intended use is but one issue in the controversy, but one element or constituent of the cause of action against the non-resident. The other elements and the amount of damages claimed are common to both defendants, one of whom is a resident of Georgia, the other a non-resident. "These connecting, constituent elements unite the controversy into a joint cause of action at the option of the appellant [plaintiff]. If separate suits were filed, there could be but one recovery awarding full damages; and a partial recovery would have to be credited on any subsequent claim for damages. What the appellant wants is not partial relief, but full compensation. The remedy which she [plaintiff] seeks requires the presence of both tort-feasors." Tolbert v. Jackson, 99 Fed. 2d, 513, 515. We think the reasoning in the Tolbert case by Judge Holmes of the Circuit Court of Appeals is sound, and we have in effect adopted it as our own.
The instant case is distinguishable from Southern RailwayCo. v. Edwards (quoted above), where Judge Lumpkin held that under the allegations of the petition the plaintiff was proceeding both *Page 180 on a joint cause of action against the non-resident and the resident defendant, and on a several cause of action also against the nonresident defendant alone. This we think is true, for on reading the opinion it is found that he said: "In so far as related to the joint acts of negligence [overloading the tender with coal] the case made by the plaintiff's petition would not be one which could properly be removed to the United States court." With reference to the alleged negligent act in not providing the engine with a careful and prudent engineer, he said, "That paragraph certainly did not charge an act of `concurrent negligence,' . . but makes his [this] charge of negligence with respect to employing an incompetent engineer against the company alone. As to this particular matter, therefore, there was a `separable controversy' between the plaintiff and the company." In other words, a joint and several action was alleged, joint against both, several against only the non-resident defendant. There being a several cause of action against the non-resident defendant alone, of course the case was removable. In the instant case, while the plaintiff might have based his suit on a separate, individual act of negligence of the non-resident, he did not elect so to do, but he elected to bring his suit alone on the joint acts of negligence of the resident and non-resident defendants. The facts that in dealing with the automobile in question the defendants acted entirely independently of each other, and that there was no relation of principal and agent, of master and servant, or of bailor and bailee between the defendants, nor did they in any way jointly participate with each other in the handling of the automobile, do not defeat a joint liability. Siler v. Morgan Motor Co., supra. The cause of action set out is joint; and the petition does not, in addition thereto, set out a several cause of action against the non-resident defendant alone, as was done in the Edwards case. Here the plaintiff pleads and relies on the joint cause of action against both the resident and the non-resident defendants, and this he had a right to do at his option.
In Armour Co. v. Bowden, supra, Judge Jenkins was but reiterating the rule laid down in the Edwards case, and in effect held that the petition in that case showed both a joint cause of action against both defendants and a several cause of action against the non-resident defendant alone; and that the cause was removable. He did not exclude from this State the rule that if the petition *Page 181 shows a joint cause of action alone, the cause is not removable. It is likewise distinguishable from the instant case. It follows that the demand against the non-resident defendant must necessarily involve the presence of the resident defendant, and that the cause is not removable. The cases cited by the plaintiff in error are distinguishable from the instant case.
Judgment affirmed. Guerry, J., concurs.