Smith v. Harris Granite Quarries Co.
| Decision Date | 10 December 1913 |
| Citation | 80 S.E. 388,164 N.C. 338 |
| Parties | SMITH v. HARRIS GRANITE QUARRIES CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rowan County; Long, Judge.
Action by W. F. Smith, as administrator, against the Harris Granite Quarries Company and others. From an order denying defendant Granite Company's application to remove the cause to the federal court, it appeals. Affirmed.
Where resident and nonresident defendants are joined, and the nonresident files a petition for removal, and sufficiently alleges fraudulent joinder, the case must be removed, and any traverse of the jurisdictional facts tried in the federal court.
The rule that filing petition and bond ends jurisdiction of the state court does not apply where a nonresident defendant seeking removal for alleged fraudulent joinder, and the petition merely alleges fraud in general terms.
The action was to recover damages for an alleged joint tort on the part of the defendant company, a foreign corporation, and C. L. Welch and Julius Eller, two of its resident employés and agents having charge and control of the company's operations in this state by reason of the negligent killing of plaintiff's intestate.
The complaint, stating the grievance with great fullness of detail, alleges in effect: That the intestate at the time was a mere child between 14 and 15 years of age, and in the employment of defendant company as tool carrier, a position of comparative safety, and was under the supervision and control of the two resident defendants as managers and agents of defendants' work at their quarries in Rowan county. That the intestate, a boy without experience or training in such work, was, by negligence of the defendant company and its said employés, put to drilling holes in a pit at the quarry for the purpose of blasting out the rock, a work of greatly increased danger, and entirely unfitted for him to do. That he was there given careless and incompetent associates and improper and negligent orders, and by reason of this wrong on the part of defendants there was an unexpected or premature explosion, causing the death of the intestate. Making further statement of the wrong complained of, the complaint alleges: "That plaintiff's intestate was a mere child, inexperienced and ignorant of the dangers incident to operating a monkey drill and the explosion and blasting of rock and stone by means of dynamite, and that it was gross negligence and carelessness on the part of the defendants to place said intestate of such immature years and experience about, in, and near such dangerous work and premises, and that it was negligence and carelessness on the part of the said defendants to remove said intestate from a place of safety to one of danger; that it was further negligence and carelessness on the part of the defendant to order, and command, and require said intestate to do work of a man, and operate a monkey drill, and it was further negligence and carelessness on the part of the defendants to fail to warn and instruct intestate of the danger incident to the performance of the new duties, and that it was gross negligence and carelessness on the part of the defendants to place said intestate to drill holes in a stone that was then already loaded and charged with dynamite and to fail to inspect and see that said stones were free from dynamite, and it was further carelessness and negligence on the part of the defendants to fail to unload and remove said dynamite from the holes in said stones before requiring said intestate to drill new holes therein; that defendants were negligent and careless in that their orders and commands given to said intestate were dangerous, and unsafe and improper for a mere child of inexperience to obey; that defendants were also negligent in that they placed incompetent and reckless superintendents and bossmen over said intestate and other employés, and required said intestate to obey the same; that the defendant the Harris Granite Quarries Company was further negligent and careless in that the defendant Julius Eller was an incompetent improper, and unsafe man to have charge of the quarry pit and be over said intestate and other employés therein; that the said defendant was negligent in that it placed as general superintendent over its quarries and the employés working therein one C. L. Welch, who was inexperienced and incompetent to give orders and instructions, and in that it required its employés and plaintiff's intestate to obey said orders of the said Welch and the said Eller."
Defendant company, having given proper bond in time, filed its application for removal to the federal court, duly verified and accompanied by supplemental affidavits, made part of the petition, in terms as follows:
"That your petitioner, the Harris Granite Quarries Company, is a corporation duly and originally created, organized, and existing under and by virtue of the laws of the state of Maine, and respectfully shows to this honorable court: That it is one of the defendants in the above-entitled civil action, which was begun against it in the superior court of Rowan county, North Carolina, by the issuance and service of summons. That the plaintiff has filed a complaint in the above-entitled action. That your petitioner files this, its petition, at and before the time it is required to answer or demur to the complaint in said action. That the matter and amount in dispute and in controversy in the above-entitled action exceeds the sum of three thousand ($3,000) dollars, exclusive of interest and cost, and is a civil action for the recovery of damages for an alleged personal injury resulting in wrongful death. That the controversy in said action is, and was at the time of the commencement of this action, between citizens of different states; the defendant the Harris Granite Quarries Company, your petitioner, being at the time of the commencement of the action and being still a resident and citizen of the state of Maine, and a nonresident, and not a citizen, of the state of North Carolina, and the plaintiff, W. F. Smith, being then and still a resident and citizen of the county of Rowan and state of North Carolina, both the plaintiff and your petitioner being actually interested in said controversy at the time of the beginning of this action, and at this time. That the defendants C. L. Welch and Julius Eller, citizens of the state of North Carolina, were not, at the time of the alleged accident or personal injury resulting in death, and prior thereto, personally charged with the duty of providing the plaintiff's intestate with reasonably safe, suitable, and proper tools and appliances, and reasonably safe premises and places to perform his duties, reasonably skilled and experienced foremen, superintendents, bossmen, and fellow servants, sufficient in number and diligence especially to look out after a blast alleged to have been made, and ascertain whether all the dynamite in any blast made had been discharged before requiring the plaintiff's intestate to enter or go where any explosion had been made or attempted, and your petitioner further avers that it did in all respects comply with and perform its said duty with respect to the safety of plaintiff's intestate, and your petitioner further avers that these duties devolved upon your petitioner alone, and are and were nonassignable, and that the defendants Julius Eller and C. L. Welch never in any manner assumed the performance of said duties, and that they were never in any manner charged with the performance of said duties, and that they were not in any manner jointly liable with your petitioner for any alleged negligence in these respects.
Your petitioner especially avers that the defendant C. L. Welch had nothing whatever to do with the employment of plaintiff's intestate, or with the employment of tool carriers, or hole drillers, and that he did not on the 2d day of July, 1913, or on the 1st day of July, 1913, or at any other time remove the plaintiff's intestate from a place of safety to one of danger. And further avers: That he had only a casual acquaintance with plaintiff's intestate, and knew nothing of his employment in the capacity of a monkey driller at the time and place alleged in the complaint, and was not present or in any wise connected with the alleged injury causing the death of the plaintiff's intestate. That the rights of the real parties in interest to this controversy can be finally adjudicated without the presence of the defendant C. L. Welch. That the defendant C. L. Welch is an improper party to this proceeding. That he had no connection therewith, and that he is an unnecessary party. That the defendant C. L. Welch has been improperly and fraudulently joined as defendant in this action for the purpose of fraudulently and improperly preventing or attempting to prevent your petitioner from removing this cause to the United States District Court, and that the plaintiff well knew at the time of the beginning of his action that C. L. Welch was not charged with the duties aforesaid as alleged in the complaint, and that he was joined for the sole and only purpose of preventing the removal of this cause, and not in good faith.
And your petitioner further avers: That the plaintiff's intestate was employed more than six months prior to his alleged death, with the written consent of his parents or guardian, to work in your petitioner's quarry. That he was a young man above the average in intelligence, and well developed physically, and he continued as an employé in your petitioner's service as tool carrier more than six months from the time he entered said service, during all of which said time he became familiar with the operations in and about your petitioner's quarry, and was...
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