Miller v. . R.R.

Civil action instituted in general county court of Buncombe County, North Carolina, for recovery of damages for injuries allegedly resulting from wrongful assault committed by defendants, Herbert W. Rose, a resident of North Carolina, and E. W. Tutwiler, a resident of Tennessee, in the scope and course of their employment "as special agents, officers, policemen or detectives" of the defendant Southern Railway Company, a corporation created by and existing under the laws of the State of Virginia. Defendant E. W. Tutwiler has not been served with summons and is not in court. In due time, defendant Southern Railway Company filed petition in proper form, accompanied by bond as required by law, for removal of the action from the general county court of Buncombe to the United States District Court for the Western District of North Carolina at Asheville, alleging inter alia separable controversy and fraudulent joinder in that its codefendants were public officers, and acting as such in the matters and things of which plaintiff complains. The general county court granted the petition and ordered the removal as prayed. Plaintiff excepted and appealed to the Superior Court of Buncombe County and, on such appeal, judgment was entered affirming the judgment of the general county court. Plaintiff appeals therefrom to Supreme Court, and assigns error. Petition for removal presents almost identical questions based on parallel facts considered by this Court in Tate v. R. R., 205 N.C. 51,169 S.E. 816. On that decision, the judgment below is Affirmed. *Page 792