Lloyd v. North Carolina R. Co

• Citation: 162 N.C. 485,78 S.E. 489
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 May 1913
• Parties: LLOYD. v. NORTH CAROLINA R. CO. et al.

(162 N.C. 485)
78 S.E. 489

LLOYD.
v.
NORTH CAROLINA R. CO. et al.

Supreme Court of North Carolina.

May 28, 1913.

1. Removal of Causes (§ 3^*)—Right of Removal—Statutory Provisions.

The purpose and effect of the amendment of 1910 (Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1325]) to the federal Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), providing that no case arising thereunder and brought in any state court of competent jurisdiction shall be removed to any court of the United States, was to withdraw the right of removal in cases arising under that statute when the action has been instituted in the state court and to require litigants desiring to have the results of the trial reviewed by reason of the presence of a federal question to proceed by writ of error to the state court making final disposition of the cause in its jurisdiction.

[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. §§ 4, 5; Dec. Dig. § 3.*]

2. Removal of Causes (§ 86*)—Petition Showing Fraudulent Attempt to Prevent Removal.

On an application to remove a cause to a federal court, plaintiff is entitled to have his cause of action considered as presented by him in his complaint, and, while a case may in proper instances be removed on the ground of false and fraudulent allegations of jurisdictional facts, the petitioner must not only allege bad faith and fraud but such facts and circumstances as are sufficient, if true, to demonstrate that plaintiff is making a fraudulent attempt to impose upon the court and deprive the petitioner of his right of removal, notwithstanding the rule that, where the petition for removal contains sufficient facts to require a removal, the state court cannot pass upon or decide the issues of fact so raised, this applying only to such issues as control and determine the right of removal.

[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. § 86.*]

3. Removal of Causes (§ 86*) — Petition Showing Fraudulent Attempt to Prevent Removal.

Where although a petition by a foreign railroad corporation to remove to a federal court an employe's action against it and a domestic corporation whose road it leased alleged a fraudulent joinder of the domestic corporation, and denied that plaintiff was engaged in interstate commerce, it appeared from a perusal of the pleadings and the admissions of record not inconsistent therewith that plaintiff was in its employ as a locomotive engineer, that he had been operating the engine, defects in which caused the injury sued for, over a portion of the leased road used as a part of the petitioner's trunk line and on to a point in another state and engaged in moving interstate freight trains, that the engine having been taken to the shops for repairs was at the time of the injury on a side track connecting with the main line of the leased road ready for a trial trip to a point in this state, and that plaintiff was inspecting and oiling it for the purpose of taking such trip and with a view of further service for the petitioner, it was not made to appear sufficient to justify a removal that plaintiff joined the domestic corporation and based his action on the federal Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) fraudulently for the purpose of preventing a removal.

[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§, 132, 166-179; Dec. Dig. § 86.*]

4. Commerce (§ 3*)—Power to Regulate— "Interstate Commerce."

The term "interstate commerce" includes instrumentalities and agencies by which it is conducted and the power of Congress extends to the regulation of such instrumentalities, including the right to legislate for the welfare of persons operating them.

[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 3; Dec. Dig. § 3.*

For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]

5. Appeal and Error (§ 927*)—Review—Appeal from Nonsuit.

In reviewing a judgment of nonsuit, where it appeared that plaintiff submitted to a nonsuit in deference to the trial court's intimation that he had not made a case, the case would be considered as presented by plaintiff's allegations and evidence, and the evidence would be interpreted in the light most favorable to him.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*]

[78 S.E. 490]

6. Master and Servant (§ 284)—Actions-Sufficiency of Evidence.

In a railway engineer's action for injuries against his employer and another railroad corporation whose road it leased, where it appeared that he was assigned for duty, and had for some time been engaged in hauling trains over that part of the lessee's system which included a portion of the lessor's road, that this was being done by the lessee with the consent of the lessor and while operating under the lessor's franchise, that at the time of the injury the engine defects in which caused the injury sued for was on a siding connected at both ends with the main line of the lessor's road where it was being oiled and inspected by plaintiff for the purpose of making a trial trip which could only be done by passing over a portion of the lessor's road a nonsuit as against the lessor was improperly granted, it being a permissible inference from the facts that the cause of action against it was well laid.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§, 1000-1090, 1092-1132; Dec. Dig. § 284.*]

7. Removal of Causes (§ 79*)—Time for Application—Effect of Nonsuit as to One Defendant.

While in an action against a resident and a nonresident defendant, if pending the cause plaintiff elects to discontinue as to the resident party, the nonresident's right of removal by reason of diverse citizenship then arises, the discontinuance must be voluntary, and this rule did not apply where the nonsuit was taken by plaintiff in deference to the trial court's intimation that he had not made a case, plaintiff was insisting on his right to have the nonsuit reviewed on appeal, and was in a position to assert it.

[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 135, 136, 139-160; Dec. Dig. § 79.*]

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

Action by W. L. Lloyd against the North Carolina Railroad Company and the Southern Railroad. From a judgment of nonsuit as to the North Carolina Railroad and a judgment removing the cause to the United States court as to the Southern Railroad, plaintiff appeals. Reversed.

Civil action, heard before Hon. R. B. Peebles, judge, and a jury, at February term, 1913. The suit originally instituted against the North Carolina Railroad, a corporation of this state, having its franchise and owning a railroad property here, and the Southern Railroad, a corporation of the state of Virginia, operating the road of its codefendant under a 99-year lease, and which, among other things, provides: "For the liability of the Southern Railway Company for all of its acts and defaults in the operation of said road" and for a deposit of "not less than $175,000 in cash, or its equivalent, to be applied" to the performance of the stipulations in the contract of lease to be performed by the lessee, and among them "to pay any judgments recovered in any court of the state or of the United States when finally adjudicated for any tort, wrong, injury, negligence, default or contract, done, made or permitted by the parties of the second part. its successors, assigns, employés, agents or servants for which the party of the first part shall be adjudged liable whether the party of the first part is sued jointly with or separately from the party of the second part." The complaint alleged, and there was evidence on part of plaintiff tending to show, that a portion of the North Carolina Railroad included in the...