Hurt v. Savona Manufacturing Co.

ClakksoN, J. The question involved: Is the nonresident defendant, Savona Manufacturing Company, legally entitled under its removal petition to have this action transferred to the United States District Court for the Western District of North Carolina for trial by reason of the allegations of its petition that Lum Bruton and Will Fox, resident defendants, were joined as defendants fraudulently and for the purpose of depriving petitioner of its alleged right of removal? We think not. This action is for actionable negligence. All the defendants are charged with a duty they owed to plaintiff and for the nonperformance of that duty, which was the proximate cause of plaintiff’s injury, they are sued as joint tort-feasors. The facts alleged in the complaint of plaintiff sets forth the duty and breach in detail. Under the facts in this action, as alleged in the complaint, the allegations are controlling, upon the question as to whether the cause of action is joint or separable. In Crisp v. Fibre Co., 193 N. C., at p. 85, it is said: “The facts alleged in the petition for removal neither compel nor point unerringly to the conclusion that the joinder in the instant ease is a fraudulent one and made without right. We hold, therefore: (1) That when a motion to remove a suit or action from the State court to the District Court of the United States for trial is made on the ground of an alleged separable controversy, the question of separability is to be determined by the manner in which the plaintiff has elected to state his cause of action, *4 whether separately or jointly, and, for this purpose, the allegations of the complaint are controlling. Morganton v. Hutton, 187 N. C., 736. (2) That when the motion to remove is made on the ground of an alleged fraudulent joinder, the petitioner is entitled to have the State Court decide the question on the face of the record, taking, for this purpose, the allegations of the petition to be true. To warrant a removal in such ease, however, the facts alleged in the petition must lead unerringly to the conclusion, or rightly engender and compel the conclusion, as a matter of law, aside from the deductions of the pleader, that the joinder is a fraudulent one in law and made without right. Fore v. Tanning Co., 175 N. C., 584.” Swain v. Cooperage Co., 189 N. C., 528; Fenner v. Cedar Works, 191 N. C., 208; Givens v. Savona Mfg. Co., 196 N. C., 377; Chicago, etc., R. Co. v. McWhirt, 243 U. S., 426, 61 L. Ed., 830, 37 Sup. Ct., 392; Johnston v. Utility Co., 197 N. C., 393; Slaughter v. Lumber Co., 197 N. C., 395. Fraudulent joinder of a resident with a nonresident defendant, for the purpose of defeating the removal of the cause to a Federal Court, cannot be established, where, by the settled la.w of the State in which the action was brought, and in which the cause of action arose, both defendants were jointly liable to suit. Chicago B. & Q. R. Co. v. Willard, 220 U. S., 413, 31 Sup. Ct. Rep., 460. In the present action the defendant traversed the facts in the complaint. The case of R. R. v. Lloyd, 166 N. C., 24, was affirmed by the Supreme Court of the United States. See 239 U. S., 496, 60 Law Ed., 402. In that case, speaking to the subject, the Court said: “In no case can the right of removal be established by a petition to remove which amounts simply to a traverse of the facts alleged in the plaintiffs petition, and in that way undertaking to try the merits of the cause of action, good upon its face. Chesapeake & O. R. Co. v. Cockrell, 232 U. S., 146, 58 L. Ed., 544, 34 Sup. Ct. Rep., 278. It is only in cases wherein the facts alleged in the petition for removal are sufficient to fairly raise the issue of fraud that the State court is required to surrender its jurisdiction.” Yiewed in the light of the above principles set forth in the authorities cited, the record in the instant case fails to disclose a right of removal. Reversed.