Matthews v. Blackwood Lumber Co.

150 S.E. 704, 198 N.C. 129, 1929 N.C. LEXIS 431

• Court: Supreme Court of North Carolina
• Decided: December 18, 1929
• Status: Published

Opinion

Pees Gotham.

Plaintiff bases bis cause of action on a joint tort alleged to have been committed by tbe defendant, Blackwood Lumber Company, a nonresident corporation, and its “swamp” foreman, Babe Fortner, a citizen and resident of Jackson County, North Carolina.

In tbe petition to remove, filed by tbe nonresident corporation, it is alleged with particularity that T. A. Bateman, and not Babe Fortner, was foreman in charge of tbe defendant’s camp operations at tbe time of plaintiff’s injury, that J. M. Price, and not Babe Fortner, was tbe “swamp” foreman in immediate charge of tbe work; that tbe plaintiff well knew these facts when tbe contrary was asserted in bis complaint, and that both tbe allegations with respect to Fortner and bis joinder as a party defendant were fraudulently made for tbe sole and only purpose of preventing a removal of tbe cause to tbe Federal Court for trial.

Under tbe principles announced in Rea v. Mirror Co., 158 N. C., 24, 73 S. E., 116, and approved in later decisions, it would seem that tbe nonresident defendant is entitled to have tbe cause removed to tbe Federal Court for trial.

Reversed.