Lawson v. Richmond & D.R. Co.

• Decision Date: 21 March 1893
• Citation: 17 S.E. 169,112 N.C. 390
• Parties: LAWSON v. RICHMOND & D. R. CO. et al.
• Court: North Carolina Supreme Court

17 S.E. 169

112 N.C. 390

LAWSON v. RICHMOND & D. R. CO. et al.

Supreme Court of North Carolina

March 21, 1893

Appeal from superior court, Iredell county; Boykin, Judge.

Action by O. W. Lawson against the Richmond & Danville Railroad Company and the Western North Carolina Railroad Company to recover damages for personal injuries. Defendant the Richmond & Danville Company obtained an order in the circuit court of the United States for the removal of the cause thereto, and then moved in the state court for an order staying proceedings therein, and directing the clerk to certify the record of the cause to the circuit court. The state court refused to permit the removal, and from the order rendered thereon defendant the Richmond & Danville Company appeals. Affirmed.

The motion was that the court sign the following order: "It appearing that defendant the Richmond & Danville Railroad Company has obtained an order for the removal of this cause into the circuit court of the United States for the western district of North Carolina, all of which appears from the petition, affidavits, and bond of said defendant and the order of said court duly certified to this court, it is considered and adjudged that this court will proceed no further in this cause, and that the clerk of this court certify to said circuit court, before the next term thereof a copy of the record in this cause." This motion was founded upon the petition, affidavits, and bond of said defendant, and the order of the circuit court of the United States for the western district of North Carolina. The court declined to sign the order, and made the following entry on the docket, to wit: "The court declines to permit the removal of this cause to the circuit court of the United States, and declines to sign the order presented by the defendant." The plaintiff was at the commencement of this action, and now is, a citizen and resident of the state of Kentucky. And from this judgment the defendant the Richmond & Danville Railroad Company appealed.

Affidavit for removal of cause upon which the motion was founded "A. B. Andrews, vice president of the Richmond & Danville Railroad Company, being duly sworn, do say that the Richmond & Danville Railroad Company is one of the defendants in the above entitled cause, which is now pending for trial in the superior court of Iredell county, in the state of North Carolina, and that from prejudice and local influence the said defendant shall not be able to obtain justice in the said state court, nor in any other state court to which the said defendant may, under the laws of the said state of North Carolina, have the right, on account of such prejudice or local influence, to remove said cause; that by the accident which occurred on the railroad of this defendant on the 26th day of August, 1891, and which is the basis of this action, a number of persons, passengers, and employes on the train of the said defendant were either killed or wounded, as many as twenty-two being killed, or having died from injuries received, and about twenty-seven injured, and that the said accident was at a place called 'Bostian Bridge,' in the county of Iredell, in said state, on the date above mentioned; that the report of said accident was at once widely circulated, and many persons from the county of Iredell came to witness the scene of the accident, and also many persons from the adjoining counties to Iredell; that the dead and wounded were carried to Statesville, the county seat of Iredell county, where the dead bodies were viewed by numerous citizens from the locality, and where many of the wounded were taken into the houses of citizens of said town that great indignation was expressed by numbers of persons in the community on account of the great loss of life and injuries resulting from the accident, and many harsh and unjust criticisms where made upon the said defendant and the alleged careless manner in which it had operated its said railroad, many leading citizens going so far as to charge publicly that the destruction of life and injuries to the persons was the result of the recklessness of the said defendant, and its wanton disregard of human safety and human life; that a newspaper published in Statesville, called the 'Landmark,' generally circulated in the county of Iredell, and circulating also widely in the counties and localities adjoining and around Iredell county, which said newspaper has great influence in its circulation, published articles adverse to the said defendant on account of said accident, bitterly arraigning the defendant before the readers of said paper and the public on account of the said accident, whereby, and on account of which, much prejudice was aroused against the said defendant, and which still exists; that many of the persons killed or injured in the said accident were residents of the said county of Iredell and the adjoining counties where their families, relatives friends, and associates reside, all of whom are or have been active and zealous in denouncing and criticising the said defendant, and exciting against the defendant much ill and prejudicial feeling; that other newspapers than the Landmark, above named, published and circulated in North Carolina and in the county aforesaid and the adjoining counties have published and circulated articles bitterly denouncing the said defendant on account of the said accident, using such expressions as 'rotten sills,' 'loose rails,' 'negligent employes,' and other like expressions, to convey to the public the impression that the said accident was due to the gross and inexcusable negligence of the said defendant; that, by reason of these things, a strong public sentiment, prejudicial to the defendant, has been manufactured and matured, so much so that this affiant verily believes that the said defendant cannot obtain justice in the state courts aforesaid; that a number of suits have been brought in the state courts of North Carolina upon the alleged cause of action aforesaid, there being as many as twelve or fifteen in the county of Iredell, as many as ten in the county of Buncombe, and several in other counties, and affiant is informed and believes that the parties plaintiff have made common cause in all the cases, and that they and their friends have been active in prejudicing the public mind against the said defendant, with a view of placing it at a disadvantage, in trials of said causes in the state courts." A certified copy of the record of the circuit court showing the petition and order of said court was filed in the superior court. One of the allegations in the petition for removal was as follows: "Your petitioner further shows that in said suit there is a controversy between a citizen of Kentucky and a citizen of Virginia, as it is informed and believes, the plaintiff's pleadings in the action, however, not showing of what state the plaintiff is a resident or citizen. The plaintiff and the petitioner are citizens of different states;" and the petitioner was at the time of bringing said suit, and still is, a citizen of Virginia; and that this action is brought in the state of North Carolina.

An order by a federal judge for removal, based on an affidavit plainly insufficient to authorize it does not constitute a removal of the cause, and the jurisdiction of the state court is not thereby ousted.

D. Schenck and F. H. Busbee, for appellant.

C. H. Armfield and W. D. Turner, for appellee.

AVERY J.

The right of removal depends upon the construction of the act of 1887, as amended in 1888, the pertinent portion of which is as follows: "And where a suit is now pending or may be hereafter brought in any state court in which there is a controversy between a citizen of the state, in which the suit is brought, and a citizen of another state, any defendant being such citizen of another state may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or any other state court to which the said defendant may, under the laws of the state, have the right on account of such prejudice or local influence, to remove said cause." Fost. Fed. Pr. § 386; Malone v. Railroad, 35 F. 631. The privilege of removal on account of prejudice or local influence is granted to defendants, who are citizens of a state other than that in which the suit is brought, and the Richmond & Danville Railroad Company is entitled to the benefits of its citizenship in Virginia. But the action here is brought in the superior court of North Carolina by a citizen of Kentucky against a resident corporation and a foreign corporation, and is not, therefore, a controversy "between a citizen of the state in which suit is brought" and the citizen of another state who, as defendant, seeks to remove the cause. A citizen of a state other than this has sued a resident corporation in our state court, which, under our statutes, has cognizance of such suit against it, and joins a nonresident corporation, having property and conducting business within the state. The facts bring this case neither within the letter nor the spirit of the act of 1888. It does...