Rucker v. Snider Bros., Inc.

• Decision Date: 25 November 1936
• Docket Number: 522.
• Citation: 188 S.E. 405,210 N.C. 777
• Parties: RUCKER v. SNIDER BROS., Inc., et al.
• Court: North Carolina Supreme Court

188 S.E. 405

210 N.C. 777

RUCKER v. SNIDER BROS., Inc., et al.

No. 522.

Supreme Court of North Carolina

November 25, 1936

Appeal from Superior Court, Mecklenburg County; T. J. Shaw Emergency Judge.

Action by Evelyn Rucker against Snider Bros., Inc., and others wherein defendant the Maner Motor Transit Company filed a petition for removal to the United States District Court. From a judgment affirming a ruling of the clerk denying the petition such defendant appeals.

Affirmed.

Petition for removal to United States District Court on the ground of diversity of citizenship and separable controversy. The ruling of the clerk denying the petition was affirmed by the judge of the superior court, and petitioner appealed to this court.

Upon a petition for removal to federal court, plaintiff is entitled to have her cause of action considered as stated in her complaint, and motion must be determined by facts therein set forth.

C. H Gover, William T. Covington, Jr., and Hugh L. Lobdell, all of Charlotte, for appellant.

Carswell & Ervin, of Charlotte, for appellee.

PER CURIAM.

The plaintiff alleged a personal injury caused by the joint negligence of each of the defendants in the operation of motor vehicles on the highway, setting out the facts, and claiming damages in the sum of $10,000. The plaintiff and the defendants, Snider Bros., Inc., and J. W. Kluttz, are residents of North Carolina, and the appellant is a Georgia corporation.

The complaint alleges that the truck of defendant Snider Bros Inc., and that of appellant collided, due to negligence of both, and that, as proximate result of joint and concurring negligence of both, plaintiff was struck and injured.

Upon a petition for removal to the federal court on the ground of separable controversy, the plaintiff is entitled to have her cause of action considered as stated in her complaint, and the motion must be determined by the facts therein set forth. Moses v. Morganton, 192 N.C. 102, 133 S.E. 421; Crisp v. Fibre Co., 193 N.C. 77, 136 S.E. 238; Brown v. R. R., 204 N.C. 25, 167 S.E. 479; Wachovia Bank & Trust Co. v. R. R., 209 N.C. 304 183 S.E. 620; Chesapeake & O. R. R. v. Dixon, 179 U.S. 131, 21 S.Ct. 67, 45 L.Ed. 121.

The facts alleged in the instant case are distinguishable from those on which the decision in Brown v. R. R., supra, was based.

It is obvious that plaintiff has here alleged a cause of action based upon the joint and...