Rea v. Standard Mirror Co.

• Decision Date: 23 December 1911
• Parties: REA v. STANDARD MIRROR CO. et al.
• Court: North Carolina Supreme Court

73 S.E. 116

158 N.C. 24

REA v. STANDARD MIRROR CO. et al.

Supreme Court of North Carolina

December 23, 1911

Appeal from Superior Court, Davidson County; Lyon, Judge.

Action by Z. M. Rea against the Standard Mirror Company and another. From a judgment ordering the case removed to the federal court, plaintiff appeals. Affirmed.

Where a verified petition for removal on the ground of diversity of citizenship alleges fraudulent joinder with a statement of facts, sufficient, if true, to show that there has been a fraudulent joinder of a resident defendant, together with a sufficient bond, is filed in the state court, the case should be removed, and the jurisdiction of the state court is at an end; the plaintiff, if he desires to challenge the truth of any averments, having the right to do so in the federal court.

Walser & Walser and Bryant & Brogden, for appellant.

Roberson & Barnhart and Craige & Craige, for appellees.

HOKE J.

At April term, 1911, of said court, plaintiff, a citizen and resident of Davidson county, N. C., having entered suit filed his complaint in the superior court of Davidson county alleging liability for physical injuries received by reason of the joint negligence on the part of the defendant the Standard Mirror Company, a corporation, citizen and resident of the state of Pennsylvania, doing business at High Point N. C., and Frank Wineskie, a resident of this state, and secretary and general manager of the company's plant in this state, having direct charge and control of the work and the laborers employed therein, including the plaintiff. The wrong alleged being in part the negligent provision made, and directions given by said Wineskie when engaged in his duties as defendant's general manager, etc.

The defendant, in apt time, and accompanied by proper bond, with good and sufficient sureties, filed his duly verified petition for removal, setting forth the position and duties of defendant Wineskie in reference to his codefendant's plant at the time of the injury, with detailed and special averment that said Wineskie was not charged with the supervision and control of plaintiff or other laborers employed in the work, or of supplying them with safe and suitable machinery or placing, etc.; that his duties were entirely in the office of defendant company, disconnected with any direction or supervision of laborers, machinery, etc.; and the petition further processed as follows: "That he was not present or in the factory when the plaintiff was injured; that the injury received was neither the direct nor proximate cause or result of any negligence of defendant Wineskie, nor of any duty imposed upon him, nor of the failure on his part to use due care, caution, or prudence, and properly discharge his duties, which are, and were at and before the alleged injury of plaintiff, in the office of said company, as above set forth; that the rights of the real parties in interest to this controversy can be finally adjudicated without the presence of the defendant Wineskie; that the defendant Wineskie is an improper party to this proceeding; that he has no connection therewith, and that he is an unnecessary party; that defendant Wineskie has been improperly and fraudulently joined as a defendant in this suit, for the purpose of fraudulently and improperly preventing, or attempting to prevent, this defendant from removing this cause to the United States Circuit Court, and that the plaintiff well knew, at the time of the beginning of this suit, that Wineskie was not charged with the duties aforesaid, as alleged in the complaint; and that he was joined as a party defendant for the sole and only purpose of preventing the removal of this cause, and not in good faith." Upon these the controlling facts relevant to the question presented, we are of opinion that the order for removal was properly made.

It is now very generally held that, on the facts stated in the complaint, the cause of action may be considered and dealt with as a joint wrong, and that when such allegations are made in good faith they must be considered and passed upon as the complaint presents them, and that when viewed as a legal proposition no severable controversy is presented which requires or permits a removal to the federal courts. Railway v. Miller; 217 U.S. 209, 20 S.Ct. 450, 54 L.Ed. 732; Ala. R. R. v. Thompson, 200 U.S. 206, 26 S.Ct. 161; 50 L.Ed. 441; Chesapeake & Ohio R. R. v. Dixon, 179 U.S. 131, 21 S.Ct. 67, 45 L.Ed. 121; Dougherty v. Railroad (C. C.) 126 F. 239.

And it is held, further, that the position as stated is not altered or in any way affected by allegation of the petition that the resident defendant was joined for the mere purpose of avoiding removal, or with no honest intent of seeking relief against such resident, or the like, nor by general allegations of fraudulent joinder. Kansas City R. R. v Hearman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76; Foster v. Gas & Electric Co. (C. C.) 185 F. 979; Shane v. Electric Ry. (C. C.) 150 F. 801; Knuth v. Electric Ry. (C. C.) 148 F. 73; Thomas v. Great Northern R. Co., 147 F. 83, 77 C. C. A. 255; Hough v: Railroad, 144 N.C. 701, 57 S.E. 469; Tobacco Co: v. Tobacco Co., 144 N.C. 352, 57 S.E. 5; Ill. R. R. v. Houchins, 121 Ky. 526, 89 S.W. 530, 1 L. R. A. (N. S.) 375, 123 Am. St. Rep. 205; So. R. R. v. Grizzle, 124 Ga. 735, 53 S.E. 244, 110 Am. St. Rep. 191. To cite from one or two of the cases, in Railroad v. Miller, supra, it was held: "For the purposes of determining the removability of a cause, the case must be deemed to be such as the plaintiff has made it, in good faith, in his pleadings; and if a plaintiff, in a suit for personal injuries, joined with the foreign corporation one or more of its employés, residents of plaintiff's state, as defendants, and the state court holds that the joinder is not improper, the cause is not separable, and cannot be removed into the federal court. Ala. Great So. R. R. v. Thompson, 200 U.S. 206 [26 S.Ct. 161, 50 L.Ed. 441]; Railway Co. v. Bonon, 200...