Opinion
(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 McElroy, J., at May Term, 1929, of JACKSON.
Morgan, Ward Stamey for plaintiff.
J. Hall Johnston for defendant.
Motion by the Blackwood Lumber Company to remove cause to the District Court of the United States for the Western District of North Carolina for trial. Motion denied, and defendant appeals.
Plaintiff bases his cause of action on a joint tort alleged to have been committed by the defendant, Blackwood Lumber Company, a nonresident corporation, and its "swamp" foreman, Babe Fortner, a citizen and resident of Jackson County, North Carolina.
In the petition to remove, filed by the nonresident corporation, it is alleged with particularity that T. A. Bateman, and not Babe Fortner, was foreman in charge of the defendant's camp operations at the time of plaintiff's injury; that J. M. Price, and not Babe Fortner, was the "swamp" foreman in immediate charge of the work; that the plaintiff well knew these facts when the contrary was asserted in his complaint, and that both the allegations with respect to Fortner and his joinder as a party defendant were fraudulently made for the sole and only purpose of preventing a removal of the cause to the Federal Court for trial.
Under the principles announced in Rea v. Mirror Co., 158 N.C. 24, 73 S.E. 116, and approved in later decisions, it would seem that the nonresident defendant is entitled to have the cause removed to the Federal Court for trial.
reversed.