Hall v. Kentucky-Virginia Stone Co.

193 S.E. 150, 212 N.C. 254, 1937 N.C. LEXIS 291

• Court: Supreme Court of North Carolina
• Decided: October 13, 1937
• Status: Published

Opinion

Pee Cueiam.

The complaint alleges that the death of the plaintiff’s intestate was caused by the joint negligence of the defendants in the operation of two trucks on the public highway. The plaintiff and the defendants Ernest Galloway, Paul McCurry, and Lon Lambert, according to the allegations of the complaint, are residents of North Carolina, and the defendant Kentucky-Yirginia Stone Company is a nonresident corporation.

The complaint alleges that the plaintiff’s intestate received fatal injuries as a result of a collision of the truck in which he was riding, which was owned by Galloway and driven by McCurry, with a truck owned by the Kentucky-Yirginia Stone Company and driven by Lon Lambert; that these two trucks collided as a result of “the mutual and concurrent negligence of the defendants, and each of them,” in that Galloway’s truck was being operated on the public highway at a negligent and unlawful speed, and the Stone Company’s truck was negligently and unlawfully parked upon said highway.

Upon a petition for removal to the Federal Court on the ground of diversity of citizenship and separable controversy, the plaintiff is entitled to have his cause of action considered as stated in the complaint. It is obvious that the complaint under consideration alleges a cause of action based upon the joint and concurrent negligence of both resident and nonresident tort-feasors. This case is governed by Rucker v. Snider Bros., 210 N. C., 777, and the petition for removal was properly denied.

Affirmed.