In November, 1939, Mrs. O.M. Villere, Sr., was killed as the result of a collision between an automobile in which she was traveling, with a freight truck belonging to Montgomery Atlanta Motor Freight Lines, Inc., appellant. An administrator of her estate was appointed, and brought this suit in Hancock County against the Freight Lines for her alleged wrongful death, and recovered judgment in the sum of $25,000, from which judgment the Freight Lines prosecuted this appeal. The collision and death took place in the State of Louisiana, therefore the rights of the parties are governed by the laws of that *Page 219 state. Under the laws of Louisiana the sole right to receive the fruits of any recovery was in the husband of Mrs. Villere and her minor daughter, Ruth Villere. On plea in abatement by the Freight Lines they were substituted as plaintiffs; notwithstanding, the original style of the case was adhered to in making up the record for this court.
The Freight Lines is a Georgia corporation. Mrs. Frank Morris, a resident of Georgia, was appointed administratrix of her estate by the Chancery Court of Hancock County, and thereupon brought this suit. All the Villere family were resident citizens of Waveland, in Hancock County. Highway 90 runs between New Orleans and Mobile. Mrs. Villere and her son, O.L. Villere, were on their way to New Orleans in an automobile, the car being driven by her son. A truck and trailer of the Freight Lines was being driven by one Claxton, going east toward Mobile. The basis of the suit is the alleged negligence of the driver of the truck. Mrs. Villere was killed and her son received an injury, for which he sued and recovered a judgment for $2,800, which was appealed to this court, and reversed and remanded. M. A. Motor Freight Lines, Inc., v. Villere, 190 Miss. 848, 1 So. 2d 788. The Freight Lines made two applications to remove the cause to the Federal court upon the ground of citizenship. The first was granted, but the Federal court refused jurisdiction, and remanded the case to the state court. After further proceedings in the state court, as hereinafter set out, the second application was made, and denied by the state court. The plaintiffs contended, and the court so held, that the application to remove came too late, because it was after the Freight Lines had plead to the declaration. That is one of the principal errors assigned and argued. We have reached the conclusion, upon the following considerations, that the state court erred in not removing the case to the Federal court.
At the March term, 1940, the Freight Lines plead to the jurisdiction of the court, upon the ground that the *Page 220 Freight Lines were engaged exclusively in interstate commerce, and that the injury and death having taken place in Louisiana, and a large number of the witnesses being residents of that state, and of Alabama and Georgia, for the state court to entertain jurisdiction would be an undue burden on interstate commerce, in violation of the commerce clause of the Federal Constitution, art. 1, sec. 8, cl. 3.
On this plea evidence was introduced, sustaining its allegations. The plea was overruled. After the disposal of this plea Mrs. Morris, the administratrix, was granted leave, upon her application, to amend the declaration, which was done. The only change was the husband and children of Mrs. Villere were made parties plaintiff, with the administratrix.
Thereupon the Freight Lines filed the first petition and bond to remove the case to the Federal court, which petition was granted at the September term, 1940. In March, 1941, the Federal court remanded the case to the Circuit Court of Hancock County. After it had gone back, and at the September term, 1941, upon a plea in abatement by the Freight Lines, the cause was dismissed as to the administratrix and O.L. Villere, Jr., and M.R. Villere, leaving as plaintiffs the husband of Mrs. Villere and their fifteen-year-old daughter. It is not questioned here that under the laws of Louisiana they alone were entitled to any amount that might be recovered. After the trial had reached this point, the Freight Lines made the second application, and gave the required bond to remove the case to the Federal court, which was overruled. Thereupon the trial proceeded, resulting in the judgment appealed from.
It will be observed that when this suit was originally brought the only plaintiff, Mrs. Morris, administratrix, was a resident citizen of the State of Georgia, and the Freight Lines were a corporation of that state. Therefore, there was no diversity of citizenship, and no right *Page 221 of removal to the Federal court, if the administratrix had the right to sue.
Section 71 (Judicial Code, section 28 amended) U.S.C.A., title 28, provides, among other things, for the removal of causes from the state courts to the Federal courts, on the ground of diversity of citizenship. Section 72 of that statute provides, however, that the application to remove must be made, "at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint."
The plaintiffs, in effect, concede that the Freight Lines had the right to remove the cause at this juncture, except for the fact that it had plead to the cause before making the application. In other words, that the application was barred because of the delay in making it. On the other hand, the Freight Lines contend that they were justified in the delay for the following reasons: When the suit was first brought the case of Mississippi Power Co. v. Archibald, 189 Miss. 332, 196 So. 760, had not been decided. The court held in that case that, although under section 510 of the Code of 1930 the suit could be brought either in the name of the personal representative or the beneficiaries, the fact that it is brought in the name of the personal representative will not prevent the removal of the case to the Federal court where there is diversity of citizenship between the beneficiaries and the defendant. In other words, that the fact alone that the citizenship of the personal representative and the defendant is the same will not prevent removal where there is diversity of citizenship between the beneficiaries and the defendant. The decision in that case was followed by the U.S. Circuit Court of Appeals of the 5th Circuit, in Thames v. State of Mississippi for Use and Benefit of Shoemaker, 117 F.2d 949, 136 A.L.R. 926. The Supreme Court of the United States refused to review that decision. 62 S. Ct. 63, 86 L. Ed. 506. Until these *Page 222 decisions were rendered, the cause proceeded on the assumption that Mecom, Adm'r, v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S. Ct. 84, 76 L. Ed. 233, 77 A.L.R. 904, held that the administrator had the right to sue. That case, however, involved an Oklahoma statute expressly providing that the administrator could bring suits of this character. We are of opinion that this state of facts justified the defendant in its move to transfer the cause to the Federal court, notwithstanding they had theretofore plead to the declaration. The authorities are to the effect that a cause may be removed when for the first time facts appear in the record showing diversity of citizenship. Robinson v. Parker, C.C., 170 F. 850; Baumgardner v. Bono Fertilizer Co., C.C., 58 F. 1, 2; Powers v. Chesapeake O.R. Co., 169 U.S. 92, 18 S. Ct. 264, 42 L. Ed. 673, 674; Roberts v. Chicago, B. Q.R. Co., C.C., 168 F. 316; Kelly v. Virginia Bridge Iron Co., D.C., 203 F. 566; Remington v. Central Pac. R. Co., 198 U.S. 95, 25 S. Ct. 577, 49 L. Ed. 959.
In this case such diversity was not shown until the administrator was eliminated as a party plaintiff. Although the delay in the dismissal as to the administrator may be chargeable to both the plaintiffs and the defendant, nevertheless, both sides, of course, acted in good faith. We think this was enough to justify the delay. Footnote 96, 28 U.S.C.A., sec. 72, in part is in this language:
"Substitution of new plaintiff. — Substitution of a new party plaintiff may extend the time within which the petition for removal may be filed, for such substitution may for the first time create a diversity of ctizenship."
And section 1057, Simkins Fed. Prac. (3 Ed.), is in this language: "When Right of Removal Arises after the Time Fixed by Statute. Sometimes the right of removal does not exist at the time when by the State law the answer is to be filed, but may arise in the subsequent proceedings in the State court, as where the amended *Page 223 petition first discloses the right to remove, or when by change of parties, by dismissal or otherwise, the controversy for the first time becomes one wholly between citizens of different states; or when the original petition in the State court is for an amount not in excess of $3,000, but plaintiff by amendment greatly increases the claim so as to bring it within Federal jurisdiction; or where by amendment the cause of action is made to depend on a Federal question not appearing in the original petition; but the amendment must, in effect, state a new cause of action.
"If any of the events happen as above stated, a motion to remove to the Federal court, promptly made, should be sustained, and therefore a motion to remand when a motion is made under these conditions will not be sustained.
"In determining the promptness with which a motion to remove is made, time must be calculated from the filing of the amended petition."
Reversed and remanded, and the lower court directed to enter an order removing the cause to the Federal court.