Kelly v. Great Atlantic & Pacific Tea Co.

183 S.E. 376, 209 N.C. 839

• Court: Supreme Court of North Carolina
• Decided: January 22, 1936
• Status: Published

Opinion

Per Curiam.

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

The trial court held that as the allegations of the complaint all point to the failure of the corporate defendant to discharge its nondelegable duty to furnish plaintiff, an employee, a reasonably safe place to work, the ease was controlled by the line of decisions of which Cox v. Lbr. Co., 193 N. C., 28, 136 S. E., 254; Johnson v. Lbr. 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 plaintiff contends the principles announced in Givens v. Mfg. Co., 196 N. C., 377, 145 S. E., 681; Crisp v. Fibre Co., 193 N. C., 77, 136 S. E., 238; and Hollifield v. Tel. Co., 172 N. C., 714, 90 S. E., 996, are more nearly applicable.

Under the trial court’s interpretation of the complaint, which is a permissible one, it would seem the plaintiff has not overcome the presumption against error. LaNeve v. Tea Co., 207 N. C., 281, 176 S. E., 560. To prevail on appeal, he who alleges error must make it appear clearly, as the presumption is against him. Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767; Jackson v. Bell, 201 N. C., 336, 159 S. E., 926.

Affirmed.