136 S.E. 238 | N.C. | 1927
Motion to remove cause to the District Court of the United States for the Western District of North Carolina for trial. Motion allowed, and plaintiff appeals. Walter Grooms, a resident of Swain County, North Carolina, died intestate following an injury received on 25 May, 1925. Plaintiff duly qualified as administrator of the estate of the deceased, instituted this action and filed his complaint in the Superior Court of Swain County, alleging liability for the wrongful death of his intestate by reason of the joint and concurrent negligence of the Champion Fibre Company, a corporation, citizen and resident of the State of Ohio, doing business at Canton and Smokemont, N.C. and C. S. Badgett, a citizen and resident of Haywood County, N.C. and Rufus Speight and R. A. Jones, citizens and residents of Swain County, N.C. The plaintiff demands in his complaint the sum of $50,000.00 as damages for the alleged wrongful death of his intestate.
It is alleged in the complaint that on and prior to 25 May, 1925, plaintiff's intestate was employed by the Champion Fibre Company *79 as a "woodpeeler" at its tannic acid plant in Swain County and was under the immediate supervision and orders of C. S. Badgett, superintendent over the wood department of the corporate defendant, and R. A. Jones, who was foreman over said department; that the said defendants jointly and severally failed, in the exercise of ordinary care, to furnish plaintiff's intestate a reasonably safe place to work and a reasonably safe and suitable place to perform the work he was employed to do and reasonably safe tools with which to do the work assigned to him, in that the wood, he was directed to peel, was carelessly and negligently piled in large quantities and in such manner as to render the place of work unsafe, without other implements for handling the wood, and notwithstanding repeated complaints from plaintiff's intestate and other employees, which met with promises of improvement, but only to be delayed until after the injury and death of plaintiff's intestate, in consequence of which all of the said defendants, it is alleged, were guilty of breaches of duty which they owed plaintiff's intestate, etc., and which resulted in his injury and death. There are other allegations of negligence set out in the complaint but not deemed necessary to be enumerated for purposes of the present appeal.
The Champion Fibre Company, in apt time, filed its duly verified petition, accompanied by proper bond, asking that the cause be removed to the District Court of the United States for the Western District of North Carolina for trial, alleging, among other things:
"That the plaintiff has wrongfully and improperly joined with your petitioner, as codefendants, C. S. Badgett, Rufus Speight and R. A. Jones, for the sole and only purpose of preventing the removal of this case from the State court to the Federal Court, and for the sole and only cause of depriving the Federal Court of its rightful jurisdiction over this controversy, which is a controversy wholly between your petitioner and the plaintiff as administrator of Walter Grooms.
"That the defendant, R. A. Jones, has not even been served with summons in this case, and is an immaterial, unnecessary and improper party to this action. That the summons has been served upon the defendants, C. S. Badgett and Rufus Speight, but your petitioner respectfully shows to the Court that said C. S. Badgett was general superintendent of the wood operation of your petitioner at the time of the accident, resulting in the death of the plaintiff's intestate, Walter Grooms, and had no direct connection with him whatever and was not present when the accident occurred and knew nothing about the accident until long after it happened.
"That the said Walter Grooms was not injured or killed on account of the negligence of the defendants or any of them, and that none of the defendants were guilty of any of the negligence alleged against *80 them in the plaintiff's complaint, and that said allegations of negligence alleged against the defendants are untrue and are denied and such statements of negligence were alleged in the complaint against the defendants with full knowledge of their falsity and for the sole and only purpose of preventing their removal of this cause to the United States Court for trial."
It is not seriously contended that the motion to remove should be allowed on the ground of a separable controversy. The requisite separability for removal does not exist where the defendants are jointly liable, either in tort or in contract. Timber Co. v. Ins. Co.,
In other words, when the motion to remove is made on the ground of an alleged separable controversy, the question is to be determined by the manner in which the plaintiff has elected to state his cause of action, and, for this purpose, the allegations of the complaint are controlling. R.R. v. Dowell,
"For the purposes of determining the removability of a cause (on the ground of an alleged separable controversy) the case must be deemed to be such as the plaintiff has made it in good faith in his pleadings." SouthernRy. Co. v. Miller,
Speaking to the question in L. N. R. R. Co. v. Ide,
"The complaint is the basis for determining the question of separability" — Varser, J., in Timber Co. v. Ins. Co., supra.
Recognizing the rule as it obtains in regard to the removability of a cause on the ground of an alleged separable controversy and appreciating the force of plaintiff's allegations of a joint wrong, the petitioner, in the instant case, insists upon its application for a removal on the ground of an alleged fraudulent joinder of the resident defendants. Upon the filing of such petition, in apt time, when the fraudulent joinder is sufficiently alleged, the suit or action must be removed to the Federal Court, and if the plaintiff desires to traverse the jurisdictional *81
facts, he must do so in that tribunal on motion to remand. Smith v.Quarries Co.,
Where the right of removal arises because of certain facts alleged in the petition, the plaintiff may not controvert such allegations of fact in the State Court, but the Federal Court alone has jurisdiction to determine any issues of fact thereby raised. Carson v. Durham,
But a general allegation of bad faith, or a mere denial of the allegations contained in the complaint, will not do. Lloyd v. R. R.,
In R. R. v. Cockrell,
Speaking to the question in Lloyd v. R. R.,
"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 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.,
When the motion to remove is made on the ground of an alleged fraudulent joinder, the petitioner is entitled to have the question determined on the face of the record, so far as the State Court is concerned, and, for this purpose the allegations of the petition are to be taken as true. There can be no doubt "that the allegations of fact, so far as material, in a petition to remove, if controverted, must be tried in the Court of the United States, and therefore must be taken to be true when they fall to be considered in the State courts." R. R. v. Sheegog,
Speaking to the question in Chehore v. Ohio, etc., Ry. Co.,
"It thus appears that a case is not, in law, removed from the State Court, upon the ground that it involves a controversy between citizens of different states, unless, at the time the application for removal is made, the record, upon its face, shows it to be one that is removable. We say, upon its face, because `the State Court is only at liberty to inquire whether, on the face of the record, a case has been made which requires it to proceed no further'; and `all issues of fact made upon the petition for removal must be tried in the Circuit Court.' Stone v. South Carolina,
It is the holding of a number of cases that the filing of a petition for removal on the ground of an alleged fraudulent joinder, when accompanied *84
by proper bond, presents to the State Court only the question of the sufficiency of the petition. Traction Co. v. Mining Co.,
In Cogdill v. Clayton,
"1. That the petition for removal must state the facts upon which the motion is based, and not mere conclusions.
"2. That the petition is insufficient if it does no more than deny the cause of action alleged in the complaint.
"3. That the State court has jurisdiction for the purpose of determining if the facts alleged present a removable cause.
"4. That the State courts cannot inquire into and decide as to the truthfulness of the facts alleged in the petition.
"5. That if the facts alleged in the petition are sufficient to justify a removal, it is the duty of the courts of the State to make the order for the removal, and that it is for the Federal Court to inquire into and determine the truth of the facts alleged upon a motion by the plaintiff in the Federal Court to remand to the State Court. Herrick v. R. R.,
If the plaintiff has a right to sue one or more of the resident defendants jointly with the nonresident defendant and even though such resident defendant be joined solely for the purpose of defeating a removal, still such joinder cannot be said to be fraudulent in law, for the law will not give an absolute right and then declare its use or exercise a fraud. When the liability of the defendants is joint, as well as several, the plaintiff may, at his election, sue both, and no motive can make his choice a fraud. R. R. v. Sheegog, supra.
Here, the plaintiff has sued the Champion Fibre Company and its "General Superintendent of Wood Operation," C. S. Badgett, alleging a breach of one of the master's nondelegable duties, to wit, the duty in the exercise of ordinary care, to furnish plaintiff's intestate a reasonably safe place to work and reasonably safe tools and appliances with which to do the work assigned to him, which failure, it is alleged, continued after promise on the part of the wood superintendent to remedy, following complaint made by plaintiff's intestate and other employees. The performance of this duty was committed to C. S. Badgett. Hence, in this respect, if no other, he was thealter ego, or vice-principal of the master. Tanner v. Lumber Co.,
Speaking to the question in Shives v. Cotton Mills,
Whenever it is sought to hold the master liable for the act or neglect of his servant, the question first to be considered is whether the negligence complained of relates to anything which it was the duty of the master to do. If it does, then the master is equally liable with the servant for he must see, at his peril, that his obligations to the workmen are properly discharged. Ross v. Walker,
The plaintiff, then, it would appear, had a right to join C. S. Badgett as a party defendant, and, although the plaintiff might have elected to sue the defendants separately, they are also liable to him jointly. Hough v. R.R.,
The facts alleged in the petition for removal neither compel nor point unerringly to the conclusion that the joinder in the instant case 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, whether separately or jointly, and, for this purpose, the allegations of the complaint are controlling. Morganton v. Hutton,
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 case, 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.,
3. That, viewed in the light of the above principles, the record in the instant case fails to disclose a right of removal.
Reversed. *86