Edwards v. Southern Railway Co.

Claeicson, J. We see no error in the judgment of the court below. In Trust Co. v. R. R., 209 N. C., 304 (311), speaking to the subject, is the following: “This matter was settled beyond question long ago in Morganton v. Hutton, supra (187 N. C., 736 [739]), and in Alabama Southern Ry. v. Thompson, 200 U. S., 206. In that ease an action was brought by the administrator of Florence Jones against the railroad and Wm. H. Mills, as conductor, and Edgar Fullar, as engineer, for actionable negligence. The defendant corporation was organized under the laws of Alabama and the conductor and engineer and plaintiff were citizens of Tennessee, where the action was brought. The opinion (a long one), covering every phase of the law and,citing a wealth of authorities, at p. 217, says: Un other words, the right to remove depended upon the case made in the complaint against both defendants jointly, and that right, in the absence of a showing of fraudulent joinder, did not arise from the failure of the complainant to establish a joint cause of action.’ At pp. 218-19, speaking to the subject, it is said: 'Does this become a separable controversy within the meaning of the act of Congress because the plaintiff has misconceived his cause of action and had no right to prosecute the defendants jointly? We think, in the light of the adjudications above cited from this Court, it does not. Upon the face of the complaint, the only pleading filed in the case, the action is joint. It may be that the state court will hold it not to be so. It may be, which we are not called upon to decide now, that this Court would so determine if the matter shall be presented on a case of which it has jurisdiction. But this does not change the character of the action, which the plaintiff has seen fit to bring, nor change an alleged joint cause of action into a separable controversy for the purpose of removal. The ease cannot be removed unless it is one which presents a separable controversy wholly between citizens of different states. In determining this question the law looks to the case made in the pleadings, and determines whether the state courts shall be required to surrender its jurisdiction to the Federal courts.’ Southern Railway Co. v. Lloyd, 239 U. S., 496.” In Clevenger v. Grover, 211 N. C., 240 (243), it is said: “As was said in Hughes v. Railroad, 210 N. C., 730, the last case wherein this Court considered the question of removal of cases to the Federal Court: *65 ‘It seems to be well settled that whether there is a separable controversy is to be determined by the complaint, and that whether resident defendants are joined fraudulently for the purpose of preventing removal of' the cause to the United States Court is to be determined by the facts alleged in the petition for removal. Morganton v. Hutton, 187 N. C., 736; Culp v. Ins. Co., 202 N. C., 87; Tate v. R. R., 205 N. C., 51; Trust Co. v. R. R., 209 N. C., 304; Powers v. R. R., 169 U. S., 92; Southern Ry. v. Lloyd, 239 U. S., 496; Wilson v. Republic Iron & Steel Co., 257 U. S., 92. The petitioner must not only allege fraudulent joinder, hut must state facts leading to that conclusion, apart from the pleader’s deduction. Crisp v. Fibre Co., 193 N. C., 77.’ ‘In order to warrant the removal on the ground of alleged fraudulent joinder, the petition must contain statements of the relevant facts and circumstances, with sufficient minuteness of detail, and be of such kind as rightly to engender or compel the conclusion that the joinder has been made in bad faith and without right.’ Crisp v. Fibre Co., 193 N. C., 77; Fore v. Tanning Co., 175 N. C., 583; Cogdill v. Clayton, 170 N. C., 527; Smith v. Quarries Co., 164 N. C., 338; R. R. v. Lloyd, 239 U. S., 496. The omission of an employee, while acting in the scope of his employment, to perform a legal duty owed to a third person, ordinarily imposes liability on both employee and employer. Trust Co. v. R. R., 209 N. C., 304; Hollifield v. Telephone Co., 172 N. C., 714; Hough v. R. R., 144 N. C., 692. When the facts set forth in the petition in the instant case as the basis for the allegation of fraudulent joinder are considered and analyzed in their relation to the cause of action alleged in the complaint, it is apparent that they are insufficient for that purpose under the rule laid down in Crisp v. Fibre Co., supra, and Trust Co. v. R. R., supra." For the reasons given, the judgment is Affirmed.