Rucker v. Snider Bros., 210 N.C. 777 (1936)

Nov. 25, 1936 · Supreme Court of North Carolina

210 N.C. 777

MISS EVELYN RUCKER v. SNIDER BROTHERS, INC., J. W. KLUTTZ, and MANER MOTOR TRANSIT COMPANY.

(Filed 25 November, 1936.)

1. Removal of Causes C b — Complaint held to state joint cause against defendants, and nonresident’s motion for removal was properly denied.

A complaint alleging that plaintiff’s injuries were the result of a collision between a truck owned by a resident defendant and a truck owned by tlie nonresident defendant, and that the collision was caused by the joint and concurrent negligence of the resident drivers of the trucks, states a joint cause against the defendants, and the nonresident defendant’s motion to remove for separable controversy and diversity of citizenship is properly denied.

2. Same—

Upon a petition for removal of a cause from the State to the Federal Court on the ground of diversity of citizenship and separable controversy, the allegations of the complaint determine whether the cause alleged is joint or separable.

Appeal by defendant Maner Motor Transit Company from Shaw, Emergency Judge, at June Term, 1936, of MeckleNburg.

Affirmed.

Petition for removal to United States District Court on tbe ground of diversity of citizenship and separable controversy. The ruling of the clerk denying the petition was affirmed by the judge of the Superior Court, and petitioner appealed to this Court.

Carswell & Ervin for plaintiff, appellee.

C. H. Cover, William T. Covington, Jr., and Hugh L. Lobdell for defendant, appellant.

Per Curiam.

The plaintiff alleged a personal injury caused by the joint negligence of each of the defendants in the operation of motor vehicles on the highway, setting out the facts and claiming damages in the sum of ten thousand dollars. The plaintiff and the defendants Snider Brothers, Inc., and J. W. Kluttz, are residents of North Carolina, and the appellant is a Georgia corporation.

The complaint alleges that the truck of defendant Snider Brothers, Inc., and that of appellant collided, due to negligence of both, and that as proximate result of joint and concurring negligence of both, plaintiff was struck and injured.

Upon a petition for removal to the Federal Court on the ground of separable controversy, the plaintiff is entitled to have her cause of action considered as stated in her complaint, and the motion must be determined by the facts therein set forth. Moses v. Morganton, 192 N. C., 102; Crisp v. Fibre Co., 193 N. C., 77; Brown v. R. R., 204 N. C., 25; Trust Co. v. R. R., 209 N. C., 304; R. R. v. Dixon, 179 U. S., 131.

Tbe facts alleged in tbe instant case are distinguishable from those on which the decision in Brown v. R. R., supra, was based.

It is obvious that plaintiff has here alleged a cause of action based upon the joint and concurring negligence of both resident and nonresident tort-feasors, at the same time and place, and that the complaint does not show a separable controversy.

The petition for removal was properly denied.

Affirmed.