This action to recover damages alleged to have resulted from the defective construction of a new automobile bought by the plaintiff from the defendant Sir Walter Chevrolet Company, was removеd to this Court from the State Court by the defendant, General Motors Corporation, a nonresident corporation, and thereafter the plaintiff moved • the Court to remand the action to the State Court fоr trial. The Sir Walter Chevrolet Company, the other defendant, is a'North Carolina corporation and the plaintiff is a resident of North Carolina.
The removing defendant asserts three grounds for its contention that the action was not improvidently removed:
First ground: That it is the only defendant against which there is stated a valid cause of action.
Among the allegations contained in the complaint are the following: “Said defendant failed in the exercise of ordinary care properly to inspect said automobile upon its receipt from its codefendant, General Motors Corporation, before selling sаme to plaintiff.”
"Said defendant failed in the exercise of ordinary care to discover the perilous condition of the steering mechanism of said automobile and -repair the same before sеlling said -automobile to plaintiff.”
“Said defendant permitted plaintiff to drive said automobile on the public highways of the State when it knew or in the exercise of due diligence should have known that said steering meсhanism would break down with painful, serious and permanent injuries and damages to plaintiff.”
“Even after being warned by plaintiff that the steering mechanism of said automobile was not functioning properly, said defendant gave plaintiff every assurance that said steering mechanism had been inspected and repaired and that plaintiff for could drive said automobile with absolute safety.”
“Said defendant knew or in the exercise of due diligence should have known that the perilous condition of the steering mechanism of said automobile would cause said automobile to lock, turn over, and cause plaintiff painful, serious -and permanent injuries.”
It is held that the complaint states a cause of action against the Sir Walter Chevrolet Company under the North Carolina law which is applicable in this case. Under modern authoritiеs a retailer of new automobiles may be held liable for failing to protect the purchaser against injuries arising from either known defects in construction or defects which would have been discovered by the exercise of reasonable care upon inspection. Prosser on Torts, p. 681; Siler v. Morgan Motor Co., D.C.,
Second ground: There is in the complaint allegation of a separate and indeрendent claim or cause of action, which would be removable if sued upon alone.
The court holds against the removing defendant on this’ contention upon the authority of Siler v. Morgan Motor Co., D.C.,
The allegations in the Siler case are strikingly similar to the allegations here. While it is true that this -case was decided under the old statute which recоgnized a separable controversy as a ground for removal, a cause not removable under that statute would not be removable under the new statute which limits the right of removal to cases where “а separate and independent claim or cause of action, which
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would be removable if sued upon alone, is joint with one or more otherwise non-removable claims or causes of action.” As stated in the Bentley case above mentioned, “Under the new Judicial Code, separable controversies are .abolished, as a distinct ground of federal removal jurisdiction, and Section 1441(c) of said code was substituted in lieu thereof. The separable controversy was uprooted, but the soil in which it flourished remains. The difference between the two concepts is one of degree, not of kind; аnd the basic principles are as applicable now as they were under prior statutes.” [
In the Siler case it is stated, 15 F. Supp. on page 470: “It seems to be well settled that an action brought in a state court against two or more defendants jointly in which the plaintiff states a case of joint liability and tort contains no separable controversy which will authorize its removal to the federal court under the provisions of the Judicial Code * * * even though the plaintiff might have sued the defendants separately.”
Again citing from the opinion in the Siler case, also, 15 F.Supp. on page 470, it is stated: “It is not claimed by the removing dеfendants that the petition does not state a cause of action against the nonresident corporations, nor is it claimed that the petition fails to state a cause of action against thе resident defendant * * * but it is insisted that the causes of action set up by the petition are not ‘joint’ but are ‘several’ only.
“The question is to be determined upon the allegations of the petition as they stood аt the time the defendants filed their petition for removal. Whether such allegations show a joint liability upon the part of all the defendants is to be determined by the law of the state where the action is brought.”
And on page 471, same opinion in 15 F. Supp., it is stated: “Testing the allegations of the petition in this respect by the law of Kentucky, we find the applicable rules stated in the case of Probst v. Hinesley,
The above quoted rule in Kentucky is in accord with the genеral rule and also with the North Carolina rule. Henderson v. Powell,
Hough v. Southern Railway Company,
Hollifield v. Southern Bell Telephone & Telegraph Co.,
Raulf v. Elizabeth City Light & Power Co.,
Here the plaintiff has brought his suit against two joint tort-feasors and has alleged concurring negligence on the part of each. It makes no difference that he alleges several liability because under the North Carolina law the liability is both joint and several. As stated in the Bentlеy case: “The federal authorities are still potent to the effect that the plaintiff has the right to select the forum; to elect whether to sue joint tort-feasors jointly or separately; and to prosecute his own suit in his own way to a final determination. They are also potent to the effect that, if the complaint is filed in good faith, the cause of action, for the purpose, of removal, is deеmed to be that which the plaintiff has undertaken to make it; that the defendant cannot make separate a cause of action which the plaintiff has elected to make, joint; * * *. That a sepаrate defense may defeat a joint recovery, but cannot deprive the plaintiff of his right to sue joint tort-feasors jointly, is a federal rule that was announced under the separable-controversy provisions of the old statute, which is still sound and capable of being used in cases under Section 1441 (c) of the new code.”
It is stated also in the Siler, opinion,
Third ground: The resident defendant was made a party in an attempt to defeat the non-resident’s right to removal. This contention is without substantial merit. Chicago, R. I. & P. Railway Co. v. Schwyhart,
The Court is of the opinion that the action was improvidently removed to this Court, and an order remanding it to the State Court has been entered.