King v. North Carolina R. Co.

• Decision Date: 29 November 1922
• Docket Number: 390.
• Parties: KING v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

115 S.E. 172

184 N.C. 442

KING v. NORTH CAROLINA R. CO.

No. 390.

Supreme Court of North Carolina

November 29, 1922

Appeal from Superior Court, Guilford County; Finley, Judge.

Action by P. M. King, administrator of the estate of Maggie Barber deceased, against the North Carolina Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Civil action to recover on a judgment in favor of plaintiff against defendant road for $2,500 damages for negligent killing of plaintiff's intestate by defendant's lessee, the Southern Railroad Company, heard on demurrer to the answer of defendant at April term, 1922, of the superior court of Guilford county.

From the facts as presented in the pleadings, it appears that on February 3, 1920, plaintiff's intestate was killed by negligence of Southern Railroad, its employees and agents while holding the defendant's railroad under a lease of defendant company, and operating same under and by virtue of defendant's franchise; that plaintiff, having duly qualified as administrator of deceased, instituted his action against defendant for said alleged negligent killing, and filed his complaint therein, setting forth the occurrence in detail and the facts tending to impute liability therefor to defendant. Defendant answered, denying any negligence on the part of its lessee as proximate cause of intestate's death, and alleging further that at the time of said killing defendant's road was not in possession of or being operated by its lessee, but was under the control and management of the government of the United States through the Director General, etc., and pursuant to the federal legislation appertaining to the subject and the administrative orders made under and by virtue of same.

On these averments the cause was submitted to the jury at March term, 1921, of said court, and verdict rendered on the following issues:

"(1) Was plaintiff's intestate killed by the negligence of defendant as alleged in the complaint? A. Yes.

(2) What damages, if any, is plaintiff entitled to recover? A. $2,500."

Judgment on the verdict for plaintiff. Defendant excepted and prayed an appeal, which was never perfected or further prosecuted. Said judgment not having been paid, plaintiff instituted the present action to March term, 1922, and filed complaint therein, averring the existence of said judgment, that same remains wholly unpaid, and demanding judgment for the $2,500 and interest. To this complaint defendant answered, admitting the recovery and existence of the judgment sued on, but alleged that same was not a valid or binding judgment, because it was obtained for the wrongful death of intestate caused by the negligence of the employees and agents of the government of the United States while the properties of defendant were being operated and controlled by the Director General of Railroads under and by virtue of the acts of Congress and the orders of the President of the United States, and for that reason said judgment is illegal and void. Defendant alleged further, in effect, that this alleged negligent killing took place when its road and all equipment, etc., was in control and charge of the government under the acts of Congress and orders aforesaid and at a time when none of the agents and employees, etc., of defendant or its lessees were engaged in operating said road or in any way responsible for said death, and to hold it liable for such an injury under such circumstances would be to take defendant's property without due process of law, etc., and in supplemental answer filed by leave of court alleged further that the present action on the judgment in behalf of defendant was in the endeavor to evade in some way the provision contained in the act of Congress known as the Transportation Act of 1920 (section 206g [41 Stat. 456]) in terms as follows:

"No execution or process, other than on a judgment recovered by the United States against a carrier, shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under federal control."

And defendant pleads further provisions of said Transportation Act in bar of recovery on the judgment.

To which said answer plaintiff files demurrer in terms as follows:

"Comes now the plaintiff and demurs to the answer of defendant herein, upon the ground that the matters and things alleged in said answer were set up or might have been set up in the defense in the original action, and this judgment sued upon is res adjudicata as to all such matters; also plaintiff moves for judgment upon the pleadings."

There was judgment sustaining demurrer in terms as follows:

"This cause coming on to be heard upon plaintiff's demurrer to the answer of defendant, it is now considered and adjudged by the court that said demurrer be, and the same is hereby, sustained. It is further considered and adjudged by the court that the plaintiff have and recover of defendant $2,500, with interest thereon from March 21, 1921, and the further sum of $95.65, with interest from same date and the cost of this action to be taxed."

Defendant excepted and appealed.

Wilson & Frazier, of Greensboro, for appellant.

W. P. Bynum and R. C. Strudwick, both of Greensboro, for appellee.

HOKE J.

It appears from an inspection of the record that plaintiff holds a judgment of the superior court against defendant for $2,500 damages and costs, purporting to be a final determination of the rights of these litigants, unchallenged by appeal or other procedure in the cause wherein the same was entered. The court being with us one of general jurisdiction, every reasonable intendment is presumed in favor of the validity of its judgment, and the same may not be impeached collaterally except for lack of jurisdiction of the cause or the parties, apparent on the face of the record. Caviness v. Hunt, Rec'r, 180 N.C. 384, 104 S.E. 763; Stocks v. Stocks, 179 N.C. 288, 102 S.E. 306; Moore v. Packer & Harrison, 174 N.C. 665, 94 S.E. 449; Settle v. Settle, 141 N.C. 553-573, 54 S.E. 445; Carter, Adm'r, v. Rountree, 109 N.C. 29, 13 S.E. 716; Doyle v. Brown, 72 N.C. 393; Harvey v. Tyler, 69 U.S. 328-343, 17 L.Ed. 871; 11 Cyc. p. 691. And in case jurisdiction has attached the binding force and conclusiveness of such judgment is in no way impaired because the same has been erroneously allowed, though the error may be undoubted and apparent on the face of the record. McNitt v. Turner, 83 U.S. 352-366, 21 L.Ed. 341; Cooper v. Reynolds, 77 U.S. at page 316, 19 L.Ed. 931; Grignon's Lessee v. Astor et al., 2 How.

(U. S.) 319, 340, 11 L.Ed. 283; Weeks v. McPhail, 128 N.C. 130, 38 S.E. 472; Carter v. Rountree, 109 N.C. supra; Spillman v. Williams, 91 N.C. 483-486; McKee v. Angel, 90 N.C. 60; Jennings v. Stafford, 23 N.C. 404; Franklin Union No. 4 v. People, 220 Ill. 355, 77 N.E. 176, 4 L. R. A. (N. S.) 1001, 110 Am. St. Rep. 248.

In McNitt v. Turner, supra, 83 U.S. at page 366 (21 L.Ed. 341), the correct principle is stated as follows:

"It is an axiomatic proposition that, when jurisdiction has attached, whatever errors may subsequently occur in its exercise, the proceeding being coram judice, can be impeached collaterally only for fraud. In all other respects it is as conclusive as if it were irreversible in a proceeding for error. The order of sale before us is within this rule. Grignon's Lessee v. Astor et al. was, like this, a case of a sale by an administrator. In that case this court said: 'The purchaser under it is not bound to look beyond the decree. If there is error in it of the most palpable kind, if the court which rendered it have, in the exercise of jurisdiction, disregarded, misconstrued, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them, the title of the purchaser is as much protected as if the adjudication would stand the test of a writ of error; and so where an appeal is given, but not taken, in the time allowed by law.' "

And in Spillman v. Williams, 91 N. C., supra, at page 486, Merrimon, Judge, delivering the opinion said:

"Although a judgment be irregular or erroneous, yet, if the court granting it had jurisdiction of the parties * * * and the subject-matter, * * * it cannot be attacked collaterally for such irregularity or error."

We do not understand that appellant desires to question the general principles to which we have referred, but it is insisted that there is a lack of jurisdiction of the subject-matter in case of the judgment here sued on by reason of the acts of Congress and executive and administrative orders pursuant thereto, by which this and other roads in continental United States were taken over by the government as a necessary step in the successful prosecution of the recent war, and particularly by reason of General Order No. 50, in which the Director General in charge and control of the roads under these legislative and executive orders provided, among other things:

"That actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contracts binding upon the Director General of Railroads, claims for death or injury to the person or for loss or damage to property arising since December 31, 1917, and growing out of the possession, use, and control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit, or proceedings but for federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise." etc.

"Second. Pleadings in all such

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