Hill v. Director General of Railroads

• Decision Date: 10 December 1919
• Docket Number: 480.
• Parties: HILL v. DIRECTOR GENERAL OF RAILROADS ET AL.
• Court: North Carolina Supreme Court

101 S.E. 376

178 N.C. 607

HILL v. DIRECTOR GENERAL OF RAILROADS ET AL.

No. 480.

Supreme Court of North Carolina

December 10, 1919

Appeal from Superior Court, Rowan County; Adams, Judge.

Action by Moses L. Hill, by his next friend, W. L. Ray, against the Director General of Railroads and the North Carolina Railroad Company. Judgment denying motion of Director General for removal to the federal court, and he appeals. Affirmed.

On filing petition and bond for removal to federal court plaintiff's cause of action as a legal proposition must be considered and dealt with as he has presented it in his complaint, and not otherwise.

Linn & Linn, of Salisbury, for appellant.

J. C Busby and A. H. Price, both of Salisbury, for appellee.

HOKE J.

Plaintiff a citizen and resident of North Carolina, institutes this action against the North Carolina Railroad Company, a domestic corporation, and the Director General of Railroads, as having charge of same under the federal statutes and executive proclamations and orders applicable, to recover damages for physical injuries wrongfully suffered by plaintiff of the defendant from the negligent operation of defendant's road in Rowan county, N. C., by its lessee, the Southern Railway Company, a Virginia corporation. Having filed his complaint, setting forth facts of the occurrence and containing full averment of the liability of the defendant company, the latter, at return term, entered a special appearance, and moved to dismiss the action as against the defendant company, for that, in the language of the motion,

"it is not a proper defendant in the cause. That, on January 1, 1918, the possession and control and operation of its railroad was taken over by the United States government, and has been so held and operated since that day by the Director General of the United States. Under an act of Congress (U. S. Comp. St. 1918, § 1974a) order No. 50a of said Director General provides that suits of this kind shall be against the Director General of Railroads and not otherwise."

The portion of the order applicable to the precise question presented being in terms as follows:

"No. 50a. It is therefore ordered that actions at law, suits in equity and proceedings in admiralty hereafter brought in any court, based on contract binding upon the Director General of Railroads, claim for death or injury to person or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit or proceeding, but for federal control, might have been brought against the carrier company, shall be brought against the Director General of Railroads, not otherwise; provided, however, that this order shall not apply to actions, suits or proceedings for the recovery of fines, penalties and forfeitures."

In support of the motion, defendant also filed the affidavit of A. D. Shelton, superintendent of the road from Salisbury to Goldsboro and from Salisbury to Monroe, Va., in terms as follows:

"That he holds his said position under the Director General of Railroads of the United States; that since December, 1917, the North Carolina Railroad has been under the control and operation of the Director General of Railroads, pursuant to an act of Congress of the United States; that said railroad is not being operated, nor has it been operated, since December, 1917, either by the North Carolina Railroad Company or by its lessee, the Southern Railway Company, but each and every act pertaining to the operation of the said railroad has been under the direction, control, and supervision of the Director General of Railroads of the United States and his agents. That at the time of the injury complained of in plaintiff's complaint, the defendant, the North Carolina Railroad, was under the control, management and operation of the Director General of Railroads for the United States, and affiant, as superintendent under the said Director General, was the Superintendent in control and operation of the said railroad."

On motion to dismiss, the court made an order that the action for the present be stayed as to defendant company and allowed to proceed "as to the Director General of Railroads in control of the lessor of the Southern Railway and to that extent the said motion is denied." Thereupon, and on notice duly served, the defendant the Director General filed his bond and verified petition for removal of the cause to the District Court of the United States, and alleging:

"That petitioner, as Director General of Railroads, operating and controlling the Southern Railway Company, a corporation originally created, organized, and existing under the laws of Virginia, is now the only defendant in the suit or civil action begun against it in the superior court of Rowan County, N. C., etc. That said suit is for $20,000 damages for negligent injury alleged to have been sustained at or near Salisbury, N.C. That the controversy is wholly between plaintiff and his next friend, citizens and residents of North Carolina, and the defendant, a citizen of New York, operating and controlling a corporation originally created, organized, and existing under and by virtue of the Laws of Virginia, and was at the commencement of this action, and still is, a citizen of the state of Virginia, and not a citizen or resident of the state of North Carolina."

Upon these, the facts presented in the record and pertinent to the inquiry, the motion for removal was denied, and defendant the Director General excepted and appealed.

It has been uniformly held with us and the principle applied directly to the lease of defendant company that, where a railroad corporation leases its road to another, in the absence of an exemption clause in the charter or other legislative provision controlling the matter, the lessor is responsible for the torts committed by the lessee in the operation of the leased road and in the exercise of its franchise. Mitchell v. Lumber Co., 174 N.C. 119, 93 S.E. 464; Mabry v. Railroad, 139 N.C. 388, 52 S.E. 124; Harden v. Railroad, 129 N.C. 354, 40 S.E. 184, 55 L. R. A. 784, 85 Am. St. Rep. 747; Logan v. Railroad, 116 N.C. 940, 21 S.E. 959; Aycock v. Railroad, 89 N.C. 321.

Authoritative cases on the subject of removal are to the effect that, on motions of this kind, the plaintiff's cause of action as a legal proposition, must be considered and dealt with as he has presented it in his complaint and not otherwise. Gurley v. Power Co., 173 N.C. 447-449, 92 S.E. 262, citing in support of the position Southern Ry. Co. v. Miller, 217 U.S. 209, 30 S.Ct. 450, 54 L.Ed. 732; Alabama Ry. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann. Cas. 1147; Chesapeake & Ohio R. R. v. Dixon, 179 U.S. 131, 21 S.Ct. 67, 45 L.Ed. 121; Rea v. Mirror Co., 158 N.C. 24, 27, 73 S.E. 116; Hough v. Railroad, 144 N.C. 704, 57 S.E. 469; Western Union v. Griffith, 104 Ga. 56, 30 S.E. 420; National Docks, etc., Ry. v. Penn. Ry., 52 N. J. Eq. 58, 28 A. 71; Fed. Judicial Code,§ 29 (Act March 3, 1911, c. 231, 36 Stat. 1095 [U. S. Comp. St. § 1011]).

The act of Congress applicable, and under which the Director General professes to have taken over the control and management of the road, being an act of the Sixty-Fifth Congress entitled as an act to provide for the operation of transportation systems while under federal control, approved March 21, 1918 (U. S. Statutes at Large, vol. 40, pt. 1, p. 457), contains, among others, the following provision, being the former portion of section 10 (U. S. Comp. St. 1918, § 3115 3/4j):

"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

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