SOUTHERN RY. CO. v. BAILEY, 224 Ala. 456 (1932)


SOUTHERN RY. CO. v. BAILEY, 224 Ala. 456 (1932)
140 So. 408

SOUTHERN RY. CO. v. BAILEY.

2 Div. 969.Supreme Court of Alabama.
January 14, 1932.Rehearing Denied March 31, 1932.

Appeal from Circuit Court, Hale County; Benj. F. Elmore, Judge.Page 457

Evins Jack, of Greensboro, and Pettus Fuller, of Selma, for appellant.

The state court cannot hear evidence of the truth vel non of the averments of a petition for removal. Burlington, C. R. N. R. Co. v. Dunn, 122 U.S. 517, 7 S.Ct. 1262, 30 L.Ed. 1159. Charge 10 was pertinent, related to the issues involved, was a correct statement of law, and its refusal was error. Batterton v. City of Birmingham, 218 Ala. 489, 119 So. 13; Sloss-Sheffield S. I. Co. v. Bearden, 202 Ala. 220,80 So. 42; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23. As a condition to plaintiff’s recovery, it was necessary for the jury to find not only that defendant’s engine had set out the fire, but that in bringing about that result the engine was not properly constructed or equipped, or had been negligently operated. Charges 5 and 1B correctly state the law and should have been given. Bessemer Feed Mills v. Alabama Great Southern R. Co., 217 Ala. 446, 116 So. 796, 797.

Harsh Harsh, of Birmingham, and S. F. Hobbs, of Selma, for appellee.

To justify the removal of a cause from a state to a federal court on account of diversity of citizenship, such diversity must exist at the beginning of the suit. In the absence of a showing of fraud in joining a resident defendant, all defendants must join in the application for removal. A resident defendant having been joined with a nonresident, the elimination of the resident defendant from the cause by action of the court, or in any other way than by the voluntary act of the plaintiff does not change the status of the case as to the right to remove. Southern R. Co. v. Bailey, 220 Ala. 385,125 So. 403; Bailey v. Southern R. Co., 215 Ala. 677, 112 So. 203; American Car Foundry Co. v. Kettelhake, 236 U.S. 311,35 S.Ct. 355, 59 L.Ed. 596; Southern R. Co. v. Lloyd,239 U.S. 496, 36 S.Ct. 210, 60 L.Ed. 403; Great Northern R. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 714. The fact, if so, of plaintiff’s nonresidence, even before and at the time of bringing the suit and constantly ever since, would not give a right of removal, provided one of the defendants was a resident when the suit was filed. 3 Foster, Fed. Pr. (6th Ed.) 2898. A charge which singles out and gives emphasis to any particular point of the evidence may be refused. 27 Alabama and Southern Digest 205, ? 244. So of a charge which is argumentative. Bray v. Ely, 105 Ala. 553, 17 So. 180; Steed v. Knowles, 97 Ala. 573, 12 So. 75; 27 Alabama and Southern Digest 186, ? 240. For these reasons and the further reason that the principle is covered by the oral charge, charge 10 was well refused. Charges 1B and 5 ignored the hypothesis that the engine was in proper repair at the time of the fire. This omission justified their refusal. Southern R. Co. v. Bailey,220 Ala. 386, 125 So. 403. This court will not reverse the trial court for refusing to grant a new trial on ground of preponderance of evidence or excessiveness of verdict unless, after due consideration, it is convinced the verdict is clearly wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Louisville N. R. Co. v. Abernathy, 192 Ala. 638, 69 So. 57.

BOULDIN, J.

Appellant again invites a ruling on the application for removal of the cause to the federal court on the ground of diverse citizenship. This application was made on a former trial, and the ruling thereon by the trial court reviewed on former appeal.

Since the matter goes to the jurisdiction of the trial court, it may properly be reconsidered at any stage of the proceedings.

We reaffirm our holding on former appeal. It affirmatively appearing that the plaintiff was a resident of this state when suit brought, and that the alleged diverse citizenship had arisen by her removal to another state pending the suit, the application disclosed no ground for removal. See former decision 220 Ala. 386 (1), 125 So. 403, and authorities there cited.

That the trial court overruled demurrer to the application and heard proof on the question of actual change of residence to another state is unimportant.Page 458

True, the truth vel non of the allegations of a petition in due form setting forth good grounds for removal is triable only in the federal court. But where, as here, the application disclosed no ground for removal, the error of the court in holding it good, and hearing the issue of fact, was harmless. The result was to retain jurisdiction just as the law demanded.

Charge 10 was refused to defendant without error for that it singles out and gives prominence to parts of the evidence.

The oral charge was full and accurate in its instructions to the jury as to the weight to be given the evidence. It directed the jury to consider the testimony in the light of experience and common sense. That this was in fact applied to the controverted evidence of value is indicated by the finding of the jury disagreeing with the opinion evidence on either side on that issue.

Defendant’s charges 5 and 1-B were refused without error upon grounds fully discussed in former opinion 220 Ala. 386, 387, (4), (5), (6), 125 So. 403. The oral charge on the last trial was like unto that there considered.

We have carefully considered the evidence touching the origin of the fire, the negligence of defendant, and of the value of the property destroyed. All these questions were for the jury. Indulging the presumptions due to the findings of a jury who saw and heard the witnesses, followed by the approval of the trial judge, we cannot say the verdict was plainly and palpably wrong and unjust.

Affirmed.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.