Cathey v. City of Charlotte

• Decision Date: 12 June 1929
• Docket Number: 467.
• Parties: CATHEY v. CITY OF CHARLOTTE et al.
• Court: North Carolina Supreme Court

148 S.E. 426

197 N.C. 309

CATHEY v. CITY OF CHARLOTTE et al.

No. 467.

Supreme Court of North Carolina

June 12, 1929

Appeal from Superior Court, Mecklenburg County; Sink, Judge.

Action by C. E. Cathey, administrator of the estate of William Graham Cathey, deceased, against the City of Charlotte and the Southern Bell Telephone Company. From a judgment removing the action to a federal district court for trial on defendant Telephone Company's petition, plaintiff appeals. Reversed.

Nonresident defendant cannot raise question of resident codefendant's liability on facts alleged in complaint, not demurred to by latter, by petition for removal to federal court.

This is an action to recover damages for the wrongful death of plaintiff's intestate, caused, as alleged in the complaint, by the joint and concurrent negligence of defendants.

Plaintiff is a citizen of the state of North Carolina; he instituted this action in the superior court of Mecklenburg county as administrator of his son, William Graham Cathey who at the date of his death was a citizen of the state of North Carolina and a resident of Mecklenburg county.

The defendant city of Charlotte is a municipal corporation organized and existing under the laws of the state of North Carolina. The defendant Southern Bell Telephone Company is a corporation organized under the laws of the state of New York, with its principal office in said state, and engaged in business in the state of North Carolina, as authorized by its charter.

The value or amount in controversy in this action, which is of a civil nature, exceeds the sum of $3,000, exclusive of interest and costs.

From judgment that the action be removed from the superior court of Mecklenburg county to the District Court of the United States for the Western District of North Carolina, Charlotte Division, for trial, in accordance with the prayer of the petition, duly filed by the defendant Southern Bell Telephone Company, the plaintiff appealed to the Supreme Court.

John M Robinson and Hunter M. Jones, both of Charlotte, for appellant.

T. C Guthrie, of Charlotte, for appellees.

CONNOR J.

It appears on the face of the complaint that on September 1 1902, an ordinance was duly adopted by the city of Charlotte, by which permission was granted to the Southern Bell Telephone Company to erect, maintain, and operate lines of telephone and telegraph, including the necessary poles, etc., upon, along, and over the streets of the city of Charlotte, provided that all poles erected and maintained by said company in said city should be sound, strong, neat and symmetrical. In consideration of the passage of said ordinance, the said telephone company agreed to provide one cross-arm on each pole, when requested so to do by the city of Charlotte, for the free use of its police and fire alarm system.

Some time prior to January 8, 1929, in accordance with the provisions of the said ordinance, the Southern Bell Telephone Company erected and installed one of its poles in the city of Charlotte, near the corner of East Fourth street and Caswell road. The city of Charlotte thereafter, under the provisions of said ordinance, and with the knowledge, consent, and approval of the telephone company, placed one of its electric wires on said pole. This wire was a part of the apparatus used by the said city in its police and fire alarm system.

On January 8, 1929, pursuant to the request of the telephone company that it remove said wire from the said pole, the city of Charlotte ordered and directed plaintiff's intestate, who was at that time an employee of the said city, to climb the said pole and to remove the said wire therefrom. Plaintiff's intestate climbed the said pole, as he was ordered and directed to do by the city; while he was at work removing said wire, the said pole broke and fell, hurling him to the ground with such force and violence as to cause injuries which resulted in his death.

It is alleged in the complaint that the death of plaintiff's intestate was caused by the joint and concurrent negligence of defendants, as specifically set out therein, and that as the result of his wrongful death, plaintiff, as his administrator, has been damaged in the sum of $75,000. Each of the allegations in the complaint involves an allegation that there were defects in said pole at the time it was erected and installed by the telephone company, or at the time plaintiff's intestate was ordered and directed by the city of Charlotte to climb the pole and to remove the wire therefrom, at the request of the telephone company. Prior to the institution of this action, plaintiff presented to the city of Charlotte his claim for damages, as he was required to do by the statute and by a provision in the charter of said city, and demanded payment of said claim. The city of Charlotte refused and neglected to pay said claim, and thereafter plaintiff instituted this action against both the defendants.

In apt time, the defendant Southern Bell Telephone Company filed its petition, pursuant to the provisions of the act of Congress for the removal of the action from the superior court of Mecklenburg county to the District Court of the United States for the Western...