Rucker v. . Snider Brothers, Inc.

188 S.E. 405, 210 N.C. 777, 1936 N.C. LEXIS 223

• Court: Supreme Court of North Carolina
• Decided: November 25, 1936
• Status: Published

Opinion

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.