Matthews v. Blackwood Lumber Co., 198 N.C. 129 (1929)

Dec. 18, 1929 · Supreme Court of North Carolina

198 N.C. 129

LESTER MATTHEWS v. BLACKWOOD LUMBER COMPANY and BABE FORTNER.

(Filed 18 December, 1929.)

Removal of Causes C b — In this case held: petition sufficiently alleged severable controversy and fraudulent joinder, and should have been granted.

Where the petition for the removal of a cause from the State to the Federal Court alleges with particularity that the resident defendant was not an employee of the nonresident defendant, and that the plaintiff knew of this fact and joined him as a defendant fraudulently for the sole purpose of preventing a removal, the petition for removal should have been granted.

Appeal by defendant from McFlroy, J., at May Term, 1929, of JAOKSON.

Motion by tbe Blackwood Lumber Company to remove cause to tbe District Court of tbe United States for tbe Western District of North Carolina for trial. Motion denied, and defendant appeals.

Morgan, Ward & Stam&y for plaintiff.

J. Hall Johnston for defendant.

Pees Gotham.

Plaintiff bases bis cause of action on a joint tort alleged to have been committed by tbe defendant, Blackwood Lumber Company, a nonresident corporation, and its “swamp” foreman, Babe Fortner, a citizen and resident of Jackson County, North Carolina.

In tbe petition to remove, filed by tbe nonresident corporation, it is alleged with particularity that T. A. Bateman, and not Babe Fortner, was foreman in charge of tbe defendant’s camp operations at tbe time of plaintiff’s injury, that J. M. Price, and not Babe Fortner, was tbe “swamp” foreman in immediate charge of tbe work; that tbe plaintiff well knew these facts when tbe contrary was asserted in bis complaint, and that both tbe allegations with respect to Fortner and bis joinder as a party defendant were fraudulently made for tbe sole and only purpose of preventing a removal of tbe cause to tbe Federal Court for trial.

Under tbe principles announced in Rea v. Mirror Co., 158 N. C., 24, 73 S. E., 116, and approved in later decisions, it would seem that tbe nonresident defendant is entitled to have tbe cause removed to tbe Federal Court for trial.

Reversed.