Barber v. Powell

• Decision Date: 14 October 1942
• Docket Number: No. 234.,234.
• Citation: 22 S.E.2d 214,222 N.C. 133
• Court: North Carolina Supreme Court
• Parties: BARBER. v. POWELL et al.

222 N.C. 133

22 S.E.2d 214

BARBER.

v.POWELL et al.

No. 234.

Supreme Court of North Carolina.

Oct. 14, 1942.

Appeal from Superior Court, Lee County; Henry L. Stevens, Jr., Judge.

Action by Ida Rosser Barber against L. R. Powell and others, receivers of the Seaboard Air Line Railway Company, for personal injuries. From an order allowing defendant's petition for removal of the cause to the United States District Court, plaintiff appeals.

Affirmed.

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, Mclntyre & Henry, of Lumberton, for appellees.

STACY, Chief Justice.

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 thelanguage 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: "Where the jurisdiction of the courts of the United States depends upon the citi zenship of the parties, it has reference to the parties as persons. A petition for removal must, therefore, state the personal citizenship of the parties, and not their official citizenship, if there can be such a thing". 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 Meccm 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...