Smith v. Harris Granite Quarries Co.

Hoke, J. It is tbe approved position witb us tbat actions of tbis character may be prosecuted as for a joint wrong, and authoritative decisions bold tbat when so stated in tbe complaint and made in good faith tbe allegations, “viewed as a legal proposition, must be considered and passed upon as tbe complaint presents them, and in such case no severable controversy is presented which requires or permits a removal to tbe Federal courts.” Chicago Ry. v. Dowell, 229 U. S., 102; Ala., etc., R. R. v. Thompson, 200 U. S., 206; Hough v. R. R., 144 N. C., 701; and Tobacco Co. v. Tobacco Co., 144 N. C., 352. Tbe petitioner recognizes tbat tbis is tbe principle obtaining here, and makes bis application on tbe ground tbat there has been, in tbis instance, a fraudulent joinder of tbe resident defendants. On such petition filed, when tbe fraudulent joinder is sufficiently alleged, tbe case must be removed to tbe Federal Court, and if tbe plaintiff desires to traverse tbe jurisdictional facts, be must proceed in tbat tribunal. But tbe cases referred to, and others of like import, are to tbe effect tbat a petition on tbat ground will not be allowed on allegations general in terms, tbat tbe resident defendant has been joined for tbe mere purpose of avoiding a removal or witb no honest intent of seeking relief against such resident, or by general allegations of fraudulent joinder, however positive in terms. Tbis question of fraud may' not, as. a rule, be raised by a single averment, as in tbe case of diversity of citizenship, but [352] it consists usually of a series of facts and circumstances indicating the fraudulent purpose, and the decisions'of the Supreme Court of the United States as interpreted in this jurisdiction require that in order to a valid petition of this character the facts and circumstances constituting the alleged fraud must be fully set' forth and with such definiteness as to show that there has been a fraudulent joinder. The position should appear as a conclusion of law from the facts stated. R. R. v. Dowell, supra; Chicago, etc., R. R. v. Willard, 220 U. S., 413; Ill. Central R. R. v. Shegogg, 215 U. S., 308; Lloyd v. R. R., 162 N. C., 485, and Rea v. Mirror Co., 158 N. C., 24. Speaking to this question in the recent case of Lloyd v. R. R., the Court said: “On this question the authorities are to the effect that when viewed as a legal proposition, the plaintiff is entitled to have his cause of action considered as he has presented it in his complaint (R. R. v. Miller, 217 U. S., 209; R. R. v. Thompson, 200 U. S., 206; Dougherty v. R. R., 126 Fed., 239) ; and while a case may in proper instances be removed on the ground of false and fraudulent allegations of jurisdictional facts, the right does not exist, nor is the question raised by general allegations of bad faith, but only when, in addition to the positive allegation of fraud, there is full and direct statement of the facts and circumstances of the transaction sufficient, if true, to demonstrate “that the adverse party is making a fraudulent attempt, to impose upon the court and so deprive the applicant of his right of. removal.” Rea v. Mirror Co., 158 N. C., 24-27, and authorities cited, notably Kansas City R. R. v. Herman, 187 U. S., 63; Foster v. Gas and Electric Co., 185 Fed., 979; Shane v. Electric Ry., 150 Fed., 801; Knutts v. Electric Ry., 148 Fed., 73; Thomas v. Great Northern, 147 Fed., 83; Hough v. R. R., 144 N. C., 701; Tobacco Co. v. Tobacco Co., 144 N. C., 352; Ill. R. R. v. Houchins, 121 Ky., 526; So. R. R. v. Gruzzle, 124 Ga., 735; and Huchill v. Maysville and C. R. R., 72 Fed., 745. True, it is now uniformly held that when a verified petition for removal is filed, accompanied by a proper bond, and same contains facts sufficient to require a removal under the law, the [353] jurisdiction of the State court is at an end. And in such case it is not for the State court to pass upon or decide the issues of fact so raised, but it may only consider and determine the sufficiency of the petition and the bond. Herrick v. R. R., 158 N. C., 307; Chesapeake v. McCabe, 213 U. S., 207; Wecker v. Natural Enameling Co., 204 U. S., 176, etc. But this position obtains only as to such issues of fact as control and determine the right of removal, and on an application for removal by reason of fraudulent joinder, such an issue is not presented by merely stating the facts of the occurrence showing a right to remove,» even though accompanied by general averment of fraud or bad faith; but, as heretofore stated, there must be full and direct statement of facts sufficient, if true, to establish or demonstrate the fraudulent purpose. Hough v. R. R., 144 N. C., 692; Tobacco Co. v. Tobacco Co., 144 N. C., 352; Shane v. Ry., 150 Fed., 801. And referring to a former decision of the Court on the subject of Rea v. Mirror Co., the opinion in Lloyd’s case said further: “In Rea v. Mirror Co., supra, the principle was applied where plaintiff had sued a nonresident corporation, doing a manufacturing business in this State, to recover for physical injuries suffered by plaintiff and alleged to be by reason of some negligence of the company in the operation of its machinery, and a resident employee was joined as codefendant. The nonresident company, in apt time, filed its duly verified petition, accompanied by proper bond, setting forth the facts of the occurrence with great fullness of detail, charging a fraudulent joinder of the resident employee, and containing averment further, that “said employee was a member of the company’s clerical force in the office of the .company, having nothing whatever to do with the machinery or its management, and that he was not present in the factory at the time of the injury.” The petition for removal was allowed, the Court being of opinion that, if these facts were established, it would make out the charge of fraudulent joinder and bring the ease within the principle of Weaker v. Natural Enameling Co., 204 U. S., 176.” Considering the petition in the light of these principles, we do not think that the issue as to fraudulent joinder of the two [354] resident defendants bas been sufficiently raised. True, there is a full and positive allegation of sucb fraud in general terms, and petitioner in denying responsibility on tbe part of these defendants makes averment that they were not “personally charged with the duty of providing plaintiff’s intestate with reasonably safe, suitable, and proper tools and appliances and reasonably safe places and premises to perform his duties, reasonably skilled and experienced foremen,, superintendents or boss men, and fellow-servants sufficient in number and diligence especially to look after blasts alleged to have been made and ascertain whether all dynamite had been' discharged before requiring or permitting plaintiff’s intestate to enter or go where such alleged explosion had been attempted or actually taken place,” etc. These averments present the petitioner’s legal conclusions arising from the position of these individual defendants rather than the positions held and the authority actually exercised by them. A corporation must necessarily agt through its agents and employees, and if a nonresident company seeks a removal on the ground of fraudulent joinder, it should be required to show the facts of the occurrence and which of their agents had the control and management at the time; and if the employees sued had duties in reference to the 'company’s work at the time and place where the injury occurred (which they evidently did, in such instance), these positions and duties should be stated so that the court, apprised of the facts, could draw its own conclusion as to their responsibility. And while the petition, speaking more directly to the alleged connection of the defendant C. L. Welsh, alleges that “he was joined as a party defendant for the sole and only purpose of preventing removal,” and that “he knew nothing of the employment of the intestate in the capacity of monkey driller at the time and places mentioned in the complaint, and was not present or in any wise connected with the alleged injury causing the death of plaintiff’s intestate,” and as to the defendant Eller, “that he was not present when the accident occurred, resulting in the death of plaintiff’s intestate, and had given him no order requiring him to do dangerous work, and had given him no [355] order to do any specific work within several days prior to said time, and “that said work was not dangerous, but perfectly safe,” etc., we do not think that either or both of these aver-ments should be allowed to affect the result. It is not infrequently true that a general manager or an agent having general charge and active control of work employing large numbers of men does not know the name or present occupation of each individual employee, and yet he may be responsible for the’ methods pursued in conducting the work and the care required in the selection of competent workmen. For aught that appears in this petition, defendant may have had such position here, and the authority as actually exercised by him may be fully sufficient to charge him with responsibility for intestate’s death, though he may not have been personally present at the time and may not have known his name. And as to defendant Eller, it appears both in the petition and accompanying affidavits that when the intestate was first employed as monkey driller, which was about ten days prior to his death, the said defendant had given him specific instructions as to the use of the monkey drill and as to all his duties connected with said employment, and especially warned him not to drill in any old holes, or in any rock or boulder of granite that had holes in it, or that were charged with dynamite or other explosive. It appears, therefore, by fair intendment from the facts stated in the petition itself that this defendant had some position in this work, giving-him authority over the intestate, and was charged with some responsibility concerning him. On careful perusal of the petition and accompanying affidavits, the Court is of opinion that they only present a general denial of liability, accompanied by general allegations of fraudulent joinder, etc., and that the traversable facts, as stated, are not sufficiently full and definite to raise the -issue of fraudulent joinder within the meaning of the removal acts. On the record, we hold that the ruling of his Honor is in accord with the decisions to which we have referred as controlling, and that his judgment denying the application must be Affirmed.