Crisp v. Champion Fibre Co

• Decision Date: 12 January 1927
• Docket Number: (No. 586.)
• Citation: 136 S.E. 238
• Parties: CRISP . v. CHAMPION FIBRE CO. et al.
• Court: North Carolina Supreme Court

136 S.E. 238

(193 N.C. 77)

CRISP .

v.CHAMPION FIBRE CO. et al.

(No. 586.)

Supreme Court of North Carolina.

Jan. 12, 1927.

Appeal from Superior Court, Swain County; Harding, Judge.

Action by P. N. Crisp, administrator of the estate of Walter Grooms, deceased, against the Champion Fibre Company and others. On petition and motion by the named defendant to remove the cause to the District Court of the United States for the Western District of North Carolina for trial. Motion allowed, and plaintiff appeals. Reversed.

Thurman Leatherwood, of Bryson City, and Alley & Alley, of Waynesville, for appellant.

Thomas S. Rollins, of Asheville, for appellee Champion Fibre Co.

STACY, C. J. Walter Grooms, a resident of Swain county, N. C., died intestate following an injury received on May 25, 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 as damages for the alleged wrongful death of his intestate.

It is alleged in the complaint that on and prior to May 25, 1925, plaintiff's intestate was employed by the Champion Fibre Company as a "wood-peeler" at its tannic acid plant in Swain county, and was under the immediate supervision and orders of C. S. Badgett, superintendent over the wood de-partment 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 our 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 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. Ivy River Land & Timber Co. v. Ins. Co., 190 N. C. 801, 130 S. E. 864, and cases there cited. And, where this is the basis of the motion for removal, the plaintiff is entitled to have his cause of action considered as stated in the complaint. Swain v. Cooperage Co., 189 N. C. 528, 127 S. E. 538; Hollifield v. Tel. Co., 172 N. C. 714, 90 S. E. 996; Smith v. Quarries Co., 164 N. C. 338, 80 S. E. 388; Lloyd v. Railroad, 162 N. C. 485, 78 S. E. 489.

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. Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 102, 33 S. Ct. 684, 57 L. Ed. 1090; Hough v. Railroad, 144 N. C. 701, 57 S. E. 469; and Tobacco Co. v. Tobacco Co., 144 N. C. 352, 57 S. E. 5.

"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." Southern Ry. Co. v. Miller, 217 U. S. 209, 30 S. Ct. 450, 54 L. Ed. 732.

Speaking to the question in L. & N. R. R. Co. v. Ide, 114 U. S. 52, 5 S. Ct. 735, 29 L. Ed. 63, Mr. Chief Justice Waite, delivering the opinion of the court, said:

"A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines [Fed. Cas. No. 13, 100], 2 Sumn. 348. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way."

"The complaint is the basis for determining the question of separability"—Varser, J., in Ivy River Land & 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 desire to traverse the jurisdictional facts, he must do so in that tri-bunal on motion to remand. Smith v. Quarries Co., 164 N. C. 338, 80 S. E. 388.

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. Dunham, 121 U. S. 421, 7 S. Ct. 1030, 30 L. Ed. 992: Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 11 S. Ct. 306, 34 L. Ed. 963; Huntley v. Express Co., 191 N. C. 696, 132 S. E. 786.

But a general allegation of bad faith, or a mere denial of the allegations contained in the complaint, will not do. Lloyd v. Railroad, 162 N. C. 485, 78 S. E. 489. In order to warrant a removal on the ground of an alleged fraudulent joinder, the petition must contain a statement 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. Fore v. Tanning Co., 175 N. C. 583, 96 S. E. 48. The petition must not only allege a fraudulent joinder or one made in bad faith, "but the showing must consist of a statement of facts rightly leading to that conclusion, apart from the pleader's deductions." Wilson v. Iron Co., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144. The position should appear as a conclusion of law from the facts stated in the petition. Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L, Ed. 521.

In Chesapeake & O. R. Co. v. Cockrell, 232 it. S. 146, 34 S. Ct. 278, 58 L. Ed. 544, it was held that a mere allegation of a fraudulent joinder was not enough, but there must be "a statement of facts rightly engendering that conclusion"; and, further, that "merely to traverse the allegations upon which the liability of the resident defendant is rested, or to apply the epithet 'fraudulent' to the joinder will not suffice—the showing must be such as compels the conclusion that the joinder is without right and made in bad faith." And in 111. Cent. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208, it was said:

"On the other hand, the mere epithet 'fraudulent' in a petition does not end the matter. In the case of a tort which gives rise to a joint and several liability, the plaintiff has an absolute right to elect and to sue the tortfeasors jointly if he sees fit, no matter what his motive, and therefore an...