LaNeve v. Great Atlantic & Pacific Tea Co., 207 N.C. 281 (1934)

Oct. 31, 1934 · Supreme Court of North Carolina

207 N.C. 281

CARL LaNEVE v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, et al.

(Filed 31 October, 1934.)

Appeal and Error J d—

Tlie burden is on appellant to overcome tbe presumption against Mm and show error in the judgment or order appealed from.

Appeal by plaintiff from McFlroy, J., 12 June, 1934, at Chambers. From Haywood.

Civil action to recover damages for an alleged negligent injury caused by the bite of a tarantula while plaintiff was a customer in defendant’s store, brought against the Atlantic and Pacific Tea Company, a corporation chartered under the laws of the State of Arizona, and Homer Owen and Sam Owen, citizens and residents of Haywood County, N. C.

Motion by nonresident corporate defendant to remove cause to the District Court of the United States for the Western District of North Carolina for trial.

Motion allowed, and plaintiff appeals.

Morgan, Stamey & Ward and J ones & Ward for plaintiff.

B. B. Williams for defendant A. & P. Company.

Stacy, C. J.

The petition for removal, besides showing the presence of the requisite jurisdictional amount, asserts a right of removal on the grounds of diverse citizenship, and alleges (1) fraudulent joinder of resident defendants, and (2) separable controversy.

The trial court held that the case was controlled by the line of decisions of which Cox v. Lumber Co., 193 N. C., 28, 136 S. E., 254, Johnson v. Lumber Co., 189 N. C., 81, 126 S. E., 165, and Rea v. Mirror Co., 158 N. C., 24, 73 S. E., 116, may be cited as fairly illustrative; while the appellant contends that the principles announced in Givens v. Mfg. Co., 196 N. C., 377, 145 S. E., 681, and Crisp v. Fibre Co., 193 N. C., 77, 136 S. E., 238, are more nearly applicable.

’Without “threshing oyer old straw,” suffice it to say, appellant has not overcome the presumption against error. Bailey v. McKay, 198 N. C., 638, 152 S. E., 893. To prevail on appeal, he who alleges error must successfully handle the laboring oar. Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767; Jackson v. Bell, 201 N. C., 336, 159 S. E., 926.

Affirmed.