Swain v. Interstate Cooperage Co.
| Decision Date | 22 April 1925 |
| Docket Number | 19. |
| Citation | 127 S.E. 538,189 N.C. 528 |
| Parties | SWAIN v. INTERSTATE COOPERAGE CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Beaufort County; Brown, Judge.
Action by Ronald S. Swain against the Interstate Cooperage Company and another. From an order of removal to the United States District Court, granted on petition of defendant named plaintiff appeals. Error.
Civil action instituted and pending on October 20, 1924, in the superior court of Beaufort county. Duly verified complaint was filed by plaintiff, and before time for answering same had expired defendant the Interstate Cooperage Company filed with the clerk of said court its petition, duly verified accompanied by bond as required by statute, praying that said court proceed no further in said action, except to make an order of removal, and to accept the bond filed with the petition, and to cause the record in said action to be removed from the superior court of Beaufort county into the district court of the United States for the Eastern District of North Carolina. The motion for removal was allowed by the clerk. From the order of removal plaintiff appealed. The petition was then heard and considered by the judge presiding at the next ensuing term of the superior court of Beaufort county. The judge affirmed the order of the clerk, and ordered that the action be removed. To this order plaintiff excepted, and appealed therefrom to this court. Assignment of error is based on this exception.
Allegations sufficient to impose liability on resident defendant jointly with nonresident held to defeat removal to federal court.
Tooly & McMullan, of Belhaven, for plaintiff.
Small MacLean & Rodman, of Washington, N. C., for defendants.
This is a civil action pending in the superior court of Beaufort county. Plaintiff, a citizen of the state of North Carolina seeks to recover damages for a personal injury alleged to have been caused by the joint wrong of defendants the Interstate Cooperage Company, a citizen of the state of New York, and W. A. Buys, a citizen of the state of North Carolina. The amount involved is $50,000, the damages alleged in the complaint.
It is alleged in the complaint that on August 8, 1923, and for some time prior thereto, the plaintiff was and had been an employee of defendant the Interstate Cooperage Company; that defendant W. A. Buys was, on said date, and had been for some time prior thereto, the manager of the box factory and other wood-working plants owned and operated by his codefendant at Belhaven, N. C.; that plaintiff, some time prior to August 8, 1923, had been ordered and directed by the Interstate Cooperage Company and W. A. Buys, "as its spokesman and agent," to leave the commissary of defendant company, where he had been at work, and to go to work in the box factory of said defendant; that his duty in said box factory was to supervise and direct the work of the men employed there; that the machinery in said box factory had been installed by the company under the direction and supervision of W. A. Buys, its manager; that on August 8, 1923, while plaintiff was engaged in the performance of his duties in said box factory, a pulley, driving the fan described in the complaint, suddenly broke into numerous fragments of jagged cast iron, one of the said fragments striking plaintiff on the head, inflicting a serious and permanent injury to plaintiff.
Plaintiff alleges that said injury was caused by the negligence of defendants, in that defendants wrongfully failed to furnish plaintiff a reasonably safe place in which to work, and in that defendants had wrongfully and negligently failed to provide a sufficient and suitable fan for the purpose of blowing the shavings, dust, bark, and other waste material accumulated from the boards passing through the planer and other machinery in said box factory, and wrongfully and negligently failed to provide sufficient and suitable conveyors to and from said fan, thus causing the fan to become choked and clogged with waste material; that thereby the fan was subjected to much strain, thus causing the pulley to break into fragments; that the injury sustained by plaintiff was the direct and proximate result of said negligence.
Plaintiff further alleged that the shaft and pulley were not properly installed by defendants, in that defendants wrongfully and negligently connected the shaft, driving said pulley, with the pulley below said mill, by a belt placed in one-quarter turn; that the defendants negligently and wrongfully placed and located the machinery in said box factory; and that this negligence of defendants was the direct and proximate cause of the injury sustained by plaintiff.
Defendant the Interstate Cooperage Company, upon petition filed in apt time, that is, before the time for answering the complaint had expired, prayed that the action be removed from the superior court of Beaufort county into the District Court of the United States for the Eastern District of North Carolina. The facts upon which this motion was made, as alleged in the petition, are: (1) That plaintiff is now and was at date of alleged injury a citizen of the state of North Carolina; (2) that defendant, the Interstate Cooperage Company, is now and was on said date a citizen of the state of New York; (3) that the amount in controversy exceeds $3,000, exclusive of interest and cost; (4) that the cause of action as between plaintiff on the one side and petitioner and its codefendant, W. A. Buys on the other is separable; and (5) that defendant W. A. Buys, a citizen of the state of North Carolina, was wrongfully and fraudulently joined with petitioner, a nonresident, as a defendant for the sole and only purpose of preventing a removal of the action into the District Court of the United States, and of depriving said court of its rightful jurisdiction of the action.
The District Court of the United States has jurisdiction of the action, as stated in...
To continue reading
Request your trial
-
Wachovia Bank & Trust Co. v. Southern Ry. Co.
... ... nonfeasance-commission or omission-done in the scope of his ... employment. Swain v. Cooperage Co., 189 N.C. 528, ... 127 S.E. 538; Crisp v. Champion Fibre Co., 193 N.C ... 77, ... ...
-
Tate v. Southern Ry. Co.
...206, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann. Cas. 1147; Southern R. Co. v. Miller, 217 U.S. 209, 30 S.Ct. 450, 54 L.Ed. 732; Swain v. Cooperage Co., 189 N.C. 528, 127 S.E. 538; Crisp v. Fibre Co., 193 N.C. 77, 136 S.E. It is not contended, however, that the motion should be allowed for this caus......
-
Hurt v. Savona Mfg. Co.
... ... and made without right. Fore v. Tanning Co., 175 N.C. 584, 96 ... S.E. 48." Swain v. Cooperage Co., 189 N.C. 528, ... 127 S.E. 538; Fenner v. Cedar Works, 191 N.C. 208, ... 131 ... ...
-
Queen v. Blackwood Lumber Co., Inc.
... ... v. Fibre Co., 193 N.C. 77, 136 S.E. 238, Swain v ... Cooperage Co., 189 N.C. 528, 127 S.E. 538, and ... Stevens v. Lumber Co., 186 N.C. 749, ... ...