Simmons v. Zurich General Accident & Liability Insurance Co., 196 N.C. 667 (1929)

Feb. 20, 1929 · Supreme Court of North Carolina

196 N.C. 667

DANIEL F. SIMMONS v. ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, Ltd., and C. T. McCLENAGHAN.

(Filed 20 February, 1929.)

Removal of Causes — Diversity of Citizenship — Separable Controversy.

Where there is only one valid and subsisting cause of action stated in the complaint, a removal of the cause to the Federal Court upon petition of the nonresident defendant is not error when the amount is within the jurisdiction of the Federal courts.

Appeal by plaintiff from Small, J., at November Term, 1928, of Beaueoet.

Motion to remove suit to tbe District Court of tbe United States for tbe Eastern District of North Carolina for trial. Motion allowed as to cause of action on contract, insurance policy, from which plaintiff appeals, assigning error.

MacLean & Rodman for plaintiff.

Ward & Grimes, Thomas Qreelcmore and Pou & Pou for defendants.

Pee Cueiam.

A critical analysis of tbe complaint leaves us with tbe impression that only one valid, subsisting cause of action (based on tbe policy of insurance) has been stated therein. Tbe other matters alleged, even if properly joined in an action on tbe contract of insurance, wbicb may be doubted if intended to set up a separate and independent action in tort, apparently bave resulted in no injury to the plaintiff as alleged, and may not. And with respect to plaintiff’s gun, it is not alleged that any demand has been made for its return.

We find no error in the removal of the suit to the Federal Court for trial on the ground of diversity of citizenship.

Affirmed.