Barber v. Atlantic Coast Line Railroad

Ltjke, J.

1. In a suit by a father.against a railroad company, to recover damages for the homicide of his nine year old son, occasioned by alleged negligence of the railroad company, it was pleaded: “That the said Atlantic Coast Line Railroad Company has injured and damaged your petitioner in the sum of twenty-five thousand ($25,000.00) dollars, as more fully hereinafter appears.” “Petitioner shows that he had. not manumitted or apprenticed the said Roscoe Barber, and that he was entitled to the proceeds of his services for twelve years.” “Petitioner shows that the said Roscoe Barber was capable of earning three dollars per week at the time of his death, that he was in good health, and that his ability to earn money would have increased as he grew older, and the said services for the term of twelve years and until he arrived at the age of 21 years were of the value of three ($3,000.00) dollars.” Held, that the suit will be construed to be a suit for only $3,000, and not removable to the district court of the United States upon diversity of citizenship. 8 R. C. L. 158; Wright v. Smith, 128 Ga. 432 (57 S. E. 684); North American Co. v. Morrison, 178 U. S. 262 (20 Sup. Ct. 869, 44 L. ed. 1061) ; Lawton Co. v. Ross-Keller Co., 33 Okla. 59 (124 Pac. 43, 49 L. R. A. (N. S.) 395) ; Flint v. Southern Ry. Co., 7 Ga. App. 316 (66 S. E. 597). It was therefore error for the court to grant an order of removal.

2. The court did not err in refusing to mark the case in default.

Judgment reversed.

Wade, O. J., and Jerilcins, J., concur.