#### PETER FENNER, Sr., Administrator of PETER FENNER, Jr., v. RICHMOND CEDAR WORKS and LONNIE SPRUILL.

(Filed 17 February, 1926.)

Removal of Causes — Federal Courts — Diversity of Citizenship — Tort— Pleadings — Petition—Severable Controversy — Fraudulent Joinder— Courts — Jurisdiction.

Upon a motion to remove a cause from the State to the Federal Court under the Federal statute for diversity of citizenship and wrongful joinder of a resident defendant with the movant, a nonresident defendant, and the complaint alleges a joint tort, the allegation of the complaint will control in passing upon the motion, unless the movant makes it clearly to appear from the matters alleged in his petition and not his conclusions therefrom alone, that the controversy was severable, and that the resident defendant was joined in fraud of the jurisdiction of the Federal Court.

Civil actioN instituted by the plaintiff against the defendants for damages for the wrongful death of plaintiff’s intestate. After the complaint was filed the defendant, Richmond Cedar Works, filed a petition for removal together with a good and sufficient bond as provided by statute.

From the order of removal made by Sinclair, J., the plaintiff appealed.

W. L. Whitley for plaintiff.

Thompson & Wilson for defendant Richmond Cedar Worles.

Brogden, J.

The sole question presented by the record is whether or not this cause is removable, and the answer to this question depends upon the construction of the complaint and the determination of whether or not the petition is sufficient to defeat the jurisdiction of the State court. The petition for removal rests upon two contentions:

(1) That the controversy is separable.

(2) That there is a fraudulent joinder of a resident defendant.

*208Tbe pertinent decisions of tbis Court and of tbe Federal Courts are to tbe effect tbat tbe complaint is tbe basis for determining tbe question of separability: Timber Co. v. Ins. Co., 190 N. C., 801; Hollifield v. Tel. Co., 172 N. C., 714; Crisp v. Lumber Co., 189 N. C., 733; Railway Co. v. Thompson, 200 U. S., 206; Ill. Central R. R. Co. v. Sheegog, 215 U. S., 308.

It is established law tbat tbe complaint is tbe sole basis for determining tbe nature of tbe cause of action against tbe various defendants and tbat a joint tort is not separable: Hough v. R. R., 144 N. C., 692; Crisp v. Lumber Co., supra; Timber Co. v. Ins. Co., supra; Ill. Central R. R. Co. v. Sheegog, supra.

An action in tort is joint or several as tbe pleader may cboose to make it, and a defendant bas no right to put asunder as several, an action which tbe plaintiff bas elected to make joint.

Tbe pertinent allegations of tbe complaint are in substance as follows :

(1) Tbat there was an agreement between tbe nonresident defendant, Richmond Cedar "Works, and tbe resident defendant, Lonnie Spruill, whereby tbe apparent relationship of independent contractor was estabr lisbed, but tbat tbis was a scheme or device and not in good faith, to enable tbe Cedar Works to escape liability for injury to employees, .and tbat tbe Cedar Works furnished supplies and equipment to tbe defendant, Spruill, to enable him to carry out tbe logging operations described in tbe complaint.

(2) Tbat tbe Richmond Cedar Works, tbe nonresident defendant, was negligent in failing to exercise ordinary care to select a reasonably competent and careful independent contractor.

(3) Tbat in June, 1925, tbe said Peter Fenner, Jr., while in tbe discharge of tbe duties assigned him in tbe course of bis employment, was killed by tbe negligence of tbe defendants in cutting down a' tree and causing it to fall directly across tbe track where tbe deceased was engaged in tbe discharge of bis duties, and tbat tbe death of tbe plaintiff was caused solely by tbe recklessness and negligence of tbe defendants in their failure to exercise ordinary care, to furnish a reasonably safe place to perform tbe duties required and in failing to exercise ordinary care in selecting reasonably suitable and skillful agents and employees upon the" work, and failing to instruct tbe deceased and to promulgate and enforce proper and suitable rules for tbe prosecution of tbe work.

It is apparent, therefore, tbat a joint tort is alleged in tbe complaint against both defendants. In Hough v. R. R., 144 N. C., 692, Justice Waller, in summarizing tbe principles deduced from tbe decisions of tbis Court and of tbe Supreme Court of tbe United States, sets out tbe proposition thus:

> *209“An action in tort is joint or several as tbe pleader may eboose to make it, unless tbe defendants were sued jointly as a device and witb a fraudulent purpose of defeating tbe right of removal, wben in fact no cause of action existed against tbe resident, and tbe assertion of bis liability to tbe plaintiff is a mere sbam or pretense. But this must he alleged and proved hy the defendant in his petition for the removal of the cause.”

Tbe nonresident defendant, however, takes tbe position that if tbe cause is not separable there has been a fraudulent joinder of tbe resident defendant, Lonnie Spruill, and for this reason tbe action should be removed to tbe District Court. It therefore becomes necessary to determine tbe essential elements of fraudulent joinder, or in other words, to determine what constitutes fraudulent joinder.

In tbe case of Chesapeake and Ohio R. R. Co. v. Cockrell, 232 U. S., 146, tbe Court points out tbe elements of fraudulent joinder as follows: “So, wben in such a case a resident defendant is joined witb tbe nonresident, tbe joinder, even although fair upon its face, may be shown by a petition for removal to be only a fraudulent device to prevent a removal; but tbe showing must consist of a statement of facts, rightly engendering that conclusion. Merely to traverse tbe allegations upon which tbe liability of tbe resident defendant is rested or to apply tbe epithet ‘fraudulent’ to tbe joinder, will not suffice; tbe showing must be such as compels the conclusion that the joinder is without right and made in had faith.” It has been further held that tbe joinder is not without right or made in bad faith unless it was without any reasonable basis. Chicago Rock Island Ry. v. Whiteaker, 239 U. S., 425.

So that, in order for tbe petitioning defendant to work a removal on tbe ground of fraudulent joinder, tbe petition must allege and prove that tbe joinder is without right, made in bad faith, and without any reasonable basis, and that tbe statement of facts constituting tbe fraudulent joinder must be full, concise and explicit to such degree as to compel tbe conclusion that tbe resident defendants were joined in bad faith.

Tbe State court, under tbe law, must assume that tbe facts set out in tbe petition are true, but it has jurisdiction to determine tbe question of their sufficiency. Tbe petition alleges “that your petitioner furnished specifications for said work and hauled tbe iron which belonged to it into tbe woods.” It does not appear what these specifications-were or what effect, if any, they bad in determining tbe control of tbe work. It is also alleged in tbe petition that tbe defendant Spruill constructed said logging railroad and switches at a fixed contract price per yard and that tbe employees of said Spruill were “paid out of tbe contract price paid him for said work.” While it is true tbe petition alleges that tbe defendant Spruill was “freed from any *210superior authority in it to say bow the specified work should be done,” and further “that said Spruill did the work according to his own judgment and methods and without being subject to your petitioner escept as to the result of the work with respect to its compliance with the specifications when completed,” yet as to whether these are deductions of the pleader or a statement of facts depends upon the terms of the contract existing between -the defendants. If deductions of the pleader, they are not sufficient. In the absence of a full, concise and direct statement 'of the terms of the contract existing, we are unable to ascertain from an inspection of the petition whether they are facts or deductions, and the burden of showing, this, from the petition, is upon the defendant.

As the case has not been tried upon its merits, we deem it inadvisable, in fairness to the litigants, to discuss the principles involved in the law of independent contractor. We are of the opinion and so hold that the petition does not meet the requirements of the law necessary to effect a removal. Therefore, the order of removal is

Reversed.