Allison v. Southern Ry. Co.

• Decision Date: 17 December 1901
• Citation: 40 S.E. 91,129 N.C. 336
• Parties: ALLISON v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

40 S.E. 91

129 N.C. 336

ALLISON v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 17, 1901

Appeal from superior court, McDowell county; Justice, Judge.

Action by J. H. Allison against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Where a railroad company incorporated in Virginia has complied with Acts N.C.1899, c. 62, entitled "An act to provide a manner in which a foreign corporation may become a domestic corporation," a state court does not lose jurisdiction of an action commenced therein by a citizen against such corporation by steps taken to remove such cause to the United States circuit court.

Geo. F Bason, for appellant.

Justice & Pless, for appellee.

MONTGOMERY J.

The defendant is now, and was at the time of the commencement of this action, a domestic corporation, originally created and organized under the laws of the state of Virginia, and, by proceedings in the circuit court of the United States for the Western district of North Carolina, obtained an order for the removal of the action from the superior court of McDowell county to the circuit court of the United States in and for the Western district of North Carolina. The plaintiff in his complaint alleged his damages to be $6,000, and the order of removal was based upon affidavits alleging local prejudice. The proceedings were certified to the superior court of McDowell county, and a motion of defendant's counsel to dismiss the action from the docket because of the order of removal was refused by his honor. The reason assigned for his honor's refusal to dismiss the action or to stay proceedings in the state court was that the defendant had complied with the terms of the act of the legislature of the state of North Carolina (chapter 62 of the Acts of 1899), and thereby became a corporation of this state. The ruling of his honor is sustained by the cases of Debnam v. Telegraph Co., 126 N.C. 831, 36 S.E. 269, and Layden v Knights of Pythias, 128 N.C. 546, 39 S.E. 47.

The defendant then moved to continue the cause on the alleged ground that the petition of the plaintiff to sue in forma pauperis showed that his counsel had taken the case for a contingent fee, and was therefore "a partner in the suit,--as much so as if his name had appeared in the summons and the complaint,"--and also upon the ground that plaintiff's counsel was a son of the judge before whom he proposed to try the case. His honor, we think, properly refused the motion. The plaintiff, in his affidavit, affirmed that he was unable to give a prosecution bond in the sum of $200, or to make a deposit of like amount for the same purpose but it did not necessarily follow that he was unable to compensate his counsel in some way other than by a division of the amount of recovery, or that his counsel had not assumed the prosecution of the suit without compensation. But suppose it was the contract between the plaintiff and his attorney that the attorney's compensation should be contingent upon recovery, and that fact should have been known to his honor; should his honor have declined to preside over the trial, as judge, because of the interest which his son had in the recovery? We know of no law which requires such a course on his part. The judges of our courts are presumed to be men of character and learning, and not to be influenced by fear, favor, or affection towards any suitor or attorney in causes before them. And especially in this case does the judge seem to be justified in proceeding with the trial. He stated: "That he knew not, nor cared, what arrangements counsel had with client as to fees. That he had no interest whatever in the matter, and that he was fully conscious of his ability to try the case with absolute impartiality. That he had two sons practicing law in his district, who had been often appearing and trying cases before him, and that to grant this motion now would be to make an admission of his inability to hear their cases impartially, which his feelings did not justify, and which he did not feel called upon to make. Besides, it appeared to the court that, at the local bar meeting when the calendar for this term was made, one of the defendant's counsel was present, and requested that this case be placed on the calendar a day certain, with other cases, for the accommodation of other of defendant's counsel, and that it was so arranged for trial, and that, out of twenty cases on the calendar, Justice & Pless appeared in eighteen of them, and this was the first case called for trial, and a continuance of this on such ground would set a precedent to continue the calendar and adjourn the court. That the judge then stated that, unless other grounds for continuance were offered, he would proceed to try the case, as he could not abdicate the bench or disbar his relatives from practicing by granting continuances upon this ground."

The fifth and sixth exceptions of the defendant concerned certain instructions given by his honor on the question of the defendant's negligence. The fifth exception is to that part of the charge which is in this language: "If you believe from the evidence that the plaintiff was a section hand, and Martin was a track foreman or section boss in the employment of defendant company, and was a vice principal of the plaintiff, and the duties of the plaintiff and Martin are as set out in the printed rules introduced in evidence, and that Martin ordered his hand car put on the track by plaintiff and others, and ordered plaintiff and others to go on said car towards Old Fort,--said Martin knowing there was a past-due train liable to come along the track, meeting them,--and the said Martin, without informing plaintiff of the danger, met the train at a point where it could not be seen by those on the hand car until it was within 510 feet of them, and would reach the point where the hand car was in from nine to ten seconds, and said Martin had not sent out a flagman or taken other precaution to protect the plaintiff this would be negligence on the part of defendant, and the plaintiff would not be guilty of negligence in riding on said hand car." And the sixth exception is to that portion of the charge which is in these words: "It was his duty to listen and look, and, in case danger was reasonably to be apprehended from a belated train or otherwise, to send a flagman in front of the hand car to notify the engineer on the train, so that the train might be stopped or slowed up or by bell or whistle give notice of its approach, in order that the hand-car crew might save themselves from danger. If you find that there was negligence on the part of the track foreman in his duties, as just defined to you, and find that he was the defendant's agent, as I have described the agency to you, and plaintiff's superior, and further find that the injury occurred, if it did occur, in the performance of the duties conferred on the agent, and that Martin negligently ordered plaintiff to go on the track to remove the car, and that the injury was the result of the...