Nelson v. Atl. Coast Line R. Co. Relief Dep't

• Decision Date: 11 March 1908
• Citation: 147 N.C. 103,60 S.E. 724
• Court: North Carolina Supreme Court
• Parties: NELSON . v. ATLANTIC COAST LINE R. CO. RELIEF DEPARTMENT.

60 S.E. 724

147 N.C. 103

NELSON .

v.ATLANTIC COAST LINE R. CO. RELIEF DEPARTMENT.

Supreme Court of North Carolina.

March 11, 1908.

1. Parties—Capacity to be Sued.

Where a policy was issued by a certain railroad company "Relief Department, " and such relief department was not incorporated and had no legal entity, an action for breach thereof must be either against the person making the contract or the railroad company, and cannot be maintained against such department.

2. Appeal—Dismissal of Action Ex Mero Motu.

Under rule 27 (53 S. E. viii), which provides for dismissal ex mero motu where there is a defect of jurisdiction, a case will be dismissed where the defendant named is not a natural person nor a corporate body, and has no legal entity.

Appeal from Superior Court, Pitt County; Lyon, Judge.

Action by W. C. Nelson against the Atlantic Coast Line Railroad Company, Relief Department. From the judgment rendered, both sides appeal. Dismissed.

J. L. Fleming, for plaintiff.

Skinner & Whedbee, for defendant.

CLARK, C. J. The defendant named in the summons is "the Atlantic Coast Line Railroad Co. Relief Department." The process is returned as served on "Dr. G. G. Thomas, Superintendent of the Atlantic Coast Line Relief Department." The complaint alleges a contract with said "relief department" and a breach thereof. The action is not against the railroad company, nor has the summons been served on that company, nor has it appeared in this action.

It is admitted here by counsel of both parties that said "A. C. L Relief Department" has not been incorporated. It is neither a natural nor an artificial being. It appears fully in the documentary evidence filed as exhibits in the pleadings, i. e., the alleged contract of insurance and the rules of said "relief department" that it is neither incorporated, nor is it a separate entity, but that it is in fact a bureau or department of the Atlantic Coast Line Railroad Company. If the contract is valid, the liability is that of said railroad company, and the summons must be served on an officer of that company. Even if the relief department could be treated as a natural person, acting as an agency for the railroad company, the agency was fully disclosed at the time of the alleged contract, and the action should be brought against the principal, the railroad company. Even a state department, like the insane asylum (Bain v. State, 86 N. C. 49); or the board of education (Co. Board v. State Board, 106 N. C. 81, 10 S. E. 1002); or the state prison (Moody v. State's Prison, 128 N. C 13, 38 S. E. 131, 53 L. R. A. 855)—is so essentially a part of the state, notwithstanding these departments are created by statute, that they have no power to sue and have immunity from liability to suit, except when the statute creating them expressly grants permission that they may "sue and be sued." For a stronger reason, this "relief department, " which is not created a corporation under any general or special legislative authority, is a mere "agency" of the Atlantic Coast Line Railroad Company, and no liability can be adjudged upon any alleged contract except by action against the natural person making the contract, or against the railroad company, as the principal of which the "relief department" was a mere agency. The "relief department" is not a natural person. It is not a corporate body. It has no legal entity. It is, in the eye of the law, an "airy nothing." It has no power to contract. Any contract...