Lackey v. Southern Ry. Co.
| Decision Date | 26 February 1941 |
| Docket Number | 26. |
| Citation | 13 S.E.2d 234,219 N.C. 195 |
| Parties | LACKEY v. SOUTHERN RY. CO. et al. |
| Court | North Carolina Supreme Court |
Jordan & Horner, of Asheville, for appellant Coca Cola Bottling Co. of Asheville, Inc.
Edwards & Leatherwood, of Byrson City, for appellee.
Plaintiff's action was brought under the Federal Employers' Liability Act, sections 51 to 59, Title 45 U.S.C.A., and the complaint sets up the cause of action against the Southern Railway Company, the sole defendant brought in by plaintiff's process, arising out of the negligence of the defendant in failing to provide for plaintiff, its employee, a safe place in which to work, and for other negligence of the employer. The negligence alleged was the maintenance of a structure belonging to the Coca Cola Bottling Company of Asheville Inc., in such close proximity to the railroad track as to constitute a source of danger to the employees in passing the said structure, which seriously injured the plaintiff in the performance of the duties required of him as a brakeman, as the train upon which he was riding brought him into collision with the structure. The Railroad Company denied its negligence, set up a contract of indemnity executed by the Coca Cola Bottling Company, and alleged that if it was negligent in producing the injury the Coca Cola Bottling Company was also negligent, and asked that this Company be brought in as a joint tort-feasor under the 1929 Amendment Pub. Laws 1929, c. 68, to C.S. § 618. This was done without exception from the plaintiff.
Thereupon the Coca Cola Bottling Company filed a petition and moved for the removal of the cause to the Federal Court on the ground of disparity of citizenship and separability of the action. This defendant is a Delaware corporation. The motion was denied in the court below and the defendant appealed to this court.
The 1929 amendment to C.S. § 618-- Chapter 68, Public Laws of 1929--permits a proceeding in which a defendant sued in tort may bring into the case a joint tort-feasor, and defendants may litigate mutual contingent liabilities before they have accrued. The question whether such a proceeding is applicable to an action brought under the Federal Employers' Liability Act has been permitted to go by default.
Upon a motion to remove a cause from the State to the Federal Court on the ground of diversity of citizenship and separability of the action, the test of separability lies in the complaint and the statement of the action therein found. Burleson v. Snipes, 211 N.C. 396, 190 S.E. 220; Rucker v Snider Bros., 210 N.C. 777, 188 S.E. 405; Wachovia Bank & Trust Co. v. Southern Railway Co., 209 N.C. 304, 183 S.E. 620; Hood v. Richardson, 208 N.C. 321, 180 S.E. 706; Ivy River Land & Timber Co. v. American Insurance Co., 190 N.C. 801, 130 S.E. 864.
The Court has found the rule to apply where a joint tort-feasor has been brought in under C.S. § 618, supra; Mangum v. Southern Railroad Co., 210 N.C. 134, 185 S.E. 644. This is regardless of the suggested cross-action between the defendants thus brought in.
The appealing defendant claims, however, that it has been brought into the case unwillingly by virtue of a contract of indemnity which it had executed to the Railroad Company, and which is set out in full in the answer of that defendant, and claims that this takes the present case out from under the rule in Mangum v. Southern Railroad Co., supra. The cross-action thus originating supplied the conditions of separability.
To illustrate the necessity and fairness of the rule that separability must be tested by the complaint, we have the defendant Coca Cola Bottling Company brought into the case by the Southern Railway Company, original defendant, both under the statute--C.S. § 618--and by reason of this contract of indemnity, upon which the Railroad Company seeks to recover against the new defendant. Examining the contract, we find it one of strict indemnity and no provision of the contract has been breached, nor, indeed, is there any allegation that it has been breached in that part of the answer referring to the contract. It is also significant that the answer does not specifically ask for relief with respect to the contract. Therefore, no cause of action has accrued thereon against the indemnitor and in favor of the indemnitee. Hilliard v. Newberry, 153 N.C. 104, 68 S.E. 1056; Reynolds v. Magness' Ex'rs, 24 N.C. 26; Robinson v. Connell, 240 Pa. 96, 87 A. 300; Schwartz & Co., Inc., v. Aimwell Co., Inc., 227 N.Y. 184, 124 N.E. 892. The Coca Cola Bottling Company preferred to remove the case to the Federal Court, rather than release itself by demurrer, although it claims to be a defendant here in invitum.
It is also true that plaintiff has made no motion with...
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