Clements v. Southern Ry. Co.

• Decision Date: 25 February 1920
• Docket Number: 105.
• Citation: 102 S.E. 399,179 N.C. 225
• Parties: CLEMENTS v. SOUTHERN RY. CO. ET AL.
• Court: North Carolina Supreme Court

102 S.E. 399

179 N.C. 225

CLEMENTS v. SOUTHERN RY. CO. ET AL.

No. 105.

Supreme Court of North Carolina

February 25, 1920

Appeal from Superior Court, Wayne County; Connor, Judge.

Action by F. C. Clements against the Southern Railway Company and W D. Hines, Director General of Railroads. From an order dismissing the Railway Company as a party defendant plaintiff appeals. Reversed.

This action was brought by plaintiff against the Southern Railroad Company and W. D. Hines, Director General of Railroads, for personal injuries sustained December 20, 1918. The summons was served by reading and delivering a copy to W. B. Devlin "the local agent" of the Southern Railroad Company at Goldsboro, N.C. That company entered a special appearance before the clerk of the superior court and moved for the dismissal of the action as to that company on the ground that W. B. Devlin was not agent of said company because its property was under the control and management of the Director General, Hines. The clerk denied the motion, and the company appealed. At the August term, 1919, of Wayne, Connor J overruling the action of the clerk, dismissed the Southern Railroad Company as a party defendant, and the plaintiff appealed.

Hood & Hood, of Goldsboro, for appellant.

J. L. Barham, of Goldsboro, for Southern Ry. Co.

CLARK C.J.

The refusal of a motion to dismiss an action is not appealable, but the defendant should enter his exceptions and appeal from the final judgment, should it be against him. Johnson v. Reformers, 135 N.C. 387, 47 S.E. 463, and numerous other cases cited; 1 Pell's Rev. p. 313. But the allowance of a motion to dismiss is final, and of course appealable.

The plaintiff, while operating, as locomotive fireman, a switching engine of the defendant company and in obeying the orders of the engineer in charge thereof, and by reason of defective appliances, was severely injured, losing his left leg at the kneejoint and his right leg five inches above the ankle, incurring great expense and intense mental anguish and physical pain and being hopelessly injured for life.

Whether the defendant company was then being operated by the Director General as the representative of the lessee or as a statutory receiver, in either event the defendant company was under the control and management of the Director General by authority of law and was a proper party. Logan v. Railroad, 116 N.C. 940, 21 S.E. 959, and Harden v. Railroad, 129 N.C. 354, 40 S.E. 184, 55 L. R. A. 784, 85 Am. St. Rep. 747. Service upon the local agent was service upon the Director General, and also upon the company as represented by him. Hollowell v. Railroad, 153 N.C. 19, 68 S.E. 894; Grady v. Railroad, 116 N.C. 952, 21 S.E. 304.

The plaintiff could not be deprived of his right of action against the company whose engine he was operating because the road was temporarily, but by lawful authority, in the control and management of a lessee, or a receiver. The plaintiff had nothing to do with that matter. The receipts and expenses of the operations will be adjusted between the company and lessee or receiver when the accounts are settled, and the road will now soon be returned to the company in all probability.

Congress by chapter 418, § 1, ratified August 29, 1916 (U. S. Comp. St. § 1974a), provided:

"The President, in time of war, is empowered * * * to take possession, and assume control of, any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic * * * for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable."

Pursuant to said act, on December 20, 1917 (U. S. Comp. St. § 1974a, note), the President issued a proclamation wherein he recited:

"And whereas it has now become necessary in the national defense to take possession and assume control of certain systems of transportation and to utilize the same, to the exclusion as far as may be necessary, of other traffic thereon, for the transportation of troops, war material and equipment therefor, and for other needful and desirable purposes connected with the prosecution of the war."

He then authorizes the War Department to take possession and assume control of them. The President further provides in said proclamation:

"Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise determine."

This was to prevent plaintiffs in such cases being barred by the lapse of time or the death of witnesses.

On March 21, 1918, Congress passed an act for the operation of transportation systems while under federal control, section 10 of which provides that--

"Carriers while under federal control, shall be subject to all laws and liabilities as common carriers whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law and in any action at law or suit in equity against the carrier, no defense shall be made thereto, upon the ground that the carrier is an instrumentality or agency of the federal government. Nor shall any such carrier be entitled to have transferred to a federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the federal control of such carrier; and any action which has heretofore been so transferred because of such federal control, or of any act of Congress or official order or proclamation relating thereto, shall, upon motion of either party be transferred to the court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such federal control. * * * U.S. Comp. Stat. 1918, Comp. St. Ann. Supp. 1919, § 3115 3/4j.

In Hill v. Director General, at last term, 178 N.C. 609, 101 S.E. 376, Hoke, J., said:

"The defendant the Director General must be considered a party only as being in the management and control of the defendant railroad."

This being so, he is simply in effect a statutory receiver, appointed by the President under authority of the act of Congress.

When a receiver is appointed by authority of a state statute, he is simply, in like manner, "to be considered a party only as being in the management and control of the defendant railroad." To the extent and in the cases authorized by the statute the judge places him in the charge of the property of the defendant. In what cases and to what extent the judge shall appoint receivers and the scope of their powers varies in different states, and in the same state according to the statute at different times. There is no magic or peculiar power in his being styled "receiver." The substantial fact is that either by decree of a judge acting by authority of law, or in this case by appointment of the President acting by authority of an act of Congress, some one is placed "in the management and control of the defendant railroad" in the cases and for the reasons and purposes prescribed in the statute.

The person so acting, whether he is called a receiver or a Director General, is a party not...