Barber v. Powell
| Decision Date | 14 October 1942 |
| Docket Number | 234. |
| Parties | BARBER v. POWELL et al. |
| Court | North Carolina Supreme Court |
Civil action to recover damages for an alleged negligent injury instituted by plaintiff, a citizen and resident of Lee County, North Carolina, against the defendants, receivers of the Seaboard Air Line Railway Company, citizens and residents of the State of Virginia.
The defendants, in apt time, filed their petition and bond for removal of the cause to the District Court of the United States for the Middle District of North Carolina for trial on the ground of diverse citizenship. The petition was denied by the Clerk, and allowed on appeal to the Judge of the Superior Court. From this latter order, the plaintiff appeals, assigning error.
K R. Hoyle, of Sanford, for appellant.
Varser McIntyre & Henry, of Lumberton, for appellees.
We have here the question whether diversity of citizenship between the plaintiff and Federal receivers of a railroad corporation gives the latter the right to remove from the State Court to the United States District Court for trial, a suit brought against them in their official capacity to recover for injuries negligently inflicted to person and property when a train operated by defendants collided with plaintiff's automobile at a grade crossing, and the amount demanded exceeds $3,000. The trial court answered in the affirmative, and we cannot say there was error in the ruling. Davies v. Lathrop, C.C., 12 F. 353.
The petition for removal, besides showing the presence of the requisite jurisdictional amount, asserts a right of removal on the ground of diverse citizenship, or that the suit is one "wholly between citizens of different States", to use the language of the Judicial Code. Title 28 U.S.C.A.§ 71. The plaintiff is a resident of Lee County, this State. The defendants are residents of the State of Virginia. They are Federal receivers of the Seaboard Air Line Railway Company, having been appointed as such in an action pending in the United States District Court for the Eastern District of Virginia.
It is alleged that on December 4, 1941, the plaintiff sustained an injury to her person and property amounting to $5,250, when her automobile in which she was driving was negligently struck by a Seaboard Air Line Railway passenger train at a street crossing in the Town of Sanford, the said train being operated at the time by agents and servants of defendants.
If the defendants are entitled to stand on their own citizenship, as intimated in some of the cases, Biggs v. Bowen, 170 N.C. 34, 86 S.E. 692, undoubtedly the suit is between citizens of different States. Brisenden v. Chamberlain, C.C., 53 F. 307. And, nothing else appearing, this would give the defendants the right to remove the cause to the Federal Court for trial on the ground of diverse citizenship. Texas & Pac. Ry. Co. v. Cox, 145 U.S. 593, 12 S.Ct. 905, 36 L.Ed. 829. The suit is of a civil nature at law of which the District Court of the United States has jurisdiction. Johnson v. Blackwood Lumber Co., 189 N.C. 81, 126 S.E. 165. "A civil case, at law or in equity, presenting a controversy between citizens of different states and involving the requisite jurisdictional amount, is one which may be removed from a state court into the District Court of the United States by the defendant, if not a resident of the state in which the case is brought". Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 37, 66 L.Ed. 144.
It was held in Brisenden v. Chamberlain, supra, that the defendant therein, receiver of the South Carolina Railroad Company, being a resident of New York, could remove for trial to the Federal Court a suit brought against him in his official capacity for causing death by wrongful act, although the railroad company itself was chartered under the laws of South Carolina, the State in which the suit was brought. The decision was grounded on the following quotation from Amory v. Amory, 95 U.S. 186, 187, 24 L.Ed. 428: . See Mexican Cent. Ry. Co. v. Eckman, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245, and City of New Orleans v. Gaines' Adm'r, 138 U.S. 595, 11 S.Ct. 428, 34 L.Ed. 1102.
In the recent case of Mecem v. Fitzsimmons Drilling Co., 1931, 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904, it was observed that the Federal Courts have jurisdiction of suits by and against executors and administrators if their citizenship be diverse from that of the opposing party, although their testators or intestates might not have been entitled to sue or been liable to suit in those courts for want of diversity of citizenship.
Conceding all that is said above, the plaintiff relies upon Title 28 U.S.C.A. § 125, which provides: "Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice."
This section abrogated the rule that a Federal receiver could not be sued without leave of the court appointing him, and gave the citizen the unconditional right to bring his action in the local courts. Texas & Pac. Ry. v. Johnson, 151 U.S 81, 14 S.Ct. 250, 38 L.Ed. 81. Cf. Sellers v. Carolina R. R., 205 N.C. 149, 170 S.E. 632. As said in Gableman v. Peoria, D. & E. R. Co. (1910), 179 U.S. 335, 21 S.Ct. 171, 173, 45 L.Ed. 220: "He ceased to be compelled to litigate at a distance, or in any other forum, or according to any other course of justice, than he would be entitled to if the property or business...
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