dissenting: I am of opinion tliat tbe motion to remove this ease to tbe Federal court should have been granted. It is held in Rea v. Mirror Co., 158 N. C., 25, by a unanimous Court in an opinion by Mr. Justice Jlolee that “When a petition for tbe removal of a cause from tbe State to tbe Federal court, properly verified and accompanied by a proper and sufficient bond, has been filed in tbe State court in apt time in an action brought against a nonresident corporation and its resident manager, alleging a joint wrong, and tbe petition contains allegations of fraudulent joinder, together with full and direct statements of tbe facts and circumstances sufficient, if true, to demonstrate that there has been such fraudulent joinder of tbe resident defendant, tbe jurisdiction of tbe State court is at an end and tbe order should be made removing tbe cause, leaving tbe remedy for tbe opposing party in tbe Federal court upon motion to remand tbe cause or other proper procedure therein.”
The pietition for removal, in my opinion, comes up1 completely to all tbe requirements of tbe aforegoing case. It alleges a separable controversy between tbe plaintiff and the telephone company; that tbe only negligence alleged is a failure to furnish sufficient men, failure to warn, and failure to furnish a reasonably safe place in which to work and safe surroundings and conditions; that tbe negligence, if any, which proximately caused tbe injury was tbe negligence of tbe telephone company.
Tbe petition further alleges failure of tbe complaint to state a joint cause of action; that J. C. Hollifield did not jointly with tbe telephone company owe tbe. defendant tbe duty to do the things tbe failure to do which constituted tbe alleged negligence; that all such duties were owing to tbe plaintiff only by tbe telephone company, and not by its servants or its alleged foreman; that tbe injury to tbe plaintiff, if any, was caused by tbe negligence of tbe defendant tbe telephone company, and no failure on tbe part of tbe said I. C. Hollifield.
Tbe petition further alleges that J. 0. Hollifield is taking no interest in this suit; that he has employed no counsel; that be is tbe son of tbe plaintiff; that- .be, to tbe knowledge of tbe plaintiff, is and was totally insolvent; that be was not in good faith made a party defendant, and that tbe plaintiff does not expect to prosecute tbe action against him, or seriously attempt to obtain a judgment against him, and that be was wrongfully, unlawfully, improperly, and fraudulently joined as a defendant for tbe sole purpose of fraudulently preventing or attempting to prevent removal of tbe cause; that at the institution of tbe suit tbe plaintiff, bis counsel, and J. C. Hollifield knew that no cause of action existed as to him, and that tbe allegations attempting to allege a joint liability were knowingly false and fictitious, and made for tbe sole *727purpose of defeating a removal; that there existed at the time, and still exists, an unlawful conspiracy between the plaintiff, his son, J. 0. Hollifield, and counsel for the plaintiff to thus fraudulently deprive the telephone company of its right of removal.
The allegations of this petition must be taken to be true so far as the State court is concerned. Dishon v. R. R., 133 Fed., 47, and eases cited. If the English language is taken in its usual acceptation, the allegations of this petition charge a fraudulent joinder of the plaintiff’s son, utterly insolvent, for the purpose of preventing the removal to the Federal court. The petition alleges that J. C. Hollifield, the son, did not contribute in any way to the plaintiff’s injury, and was in no sense liable therefor. It sets out the acts of the defendant J. 0. Holli-field to support these allegations. The case comes within the ruling of the Federal court in the Dishon case, supra, which is cited with approval in Ky. v. Powers, 201 U. S., p. 1.
The proceedings in the trial court, which are set out in the record, substantiate all of the allegations of the petition for removal. The record shows that J. 0. Hollifield was the son of the plaintiff, that he was utterly insolvent, that he filed no answer, employed no counsel, and made no defense. The record further shows that the plaintiff did not intend to take any judgment against him except by default and inquiry.
No issues 'were tendered affecting J. 0. Hollifield and no judgment was moved for against him. The counsel for the plaintiff stated in open court: “We do not now expect to pursue our inquiry on the judgment by default as to J. O. Hollifield.”
Many Federal cases can be cited sustaining the right to remove this case, but it is necessary to quote only one, Wecker v. Enam. Co., 204 U. S., 376, which is decisive in this case. In the Wecker case two individuals, employees of the corporation, were joined as defendants and allegations made in the complaint, for the purpose of charging them with liability; that they failed to perform certain duties imposed upon them, and as a result of such negligence plaintiff lost his balance and fell into one of the vats and was greatly injured. Plaintiff alleges that his injury was the result of the joint negligence of the corporation and the two individuals. The Supreme Court held that the case was removable upon the face of the petition, saying: “While the plaintiff, in good faith, may proceed in the State courts upon a cause of action which he alleges to be joint, it is equally true that the Federal court should not sanction a device to prevent the removal to the Federal court, where one has that right, and should be equally vigilant to protect the right to proceed in the Federal court, as to permit the State court, in proper cases, to retain their own jurisdiction.”
*728With all deference to the opinion of my brethren, I am of opinion that if it has ever been demonstrated in any case that there was a fraudulent joinder of parties defendant to prevent a removal to the Federal court, it has been demonstrated'in this case.