Norfolk & P. B. L. R. Co v. Parker

• Decision Date: 21 March 1929
• Citation: 147 S.E. 461
• Court: Virginia Supreme Court
• Parties: NORFOLK & P. B. L. R. CO. v. PARKER et al.

147 S.E. 461

NORFOLK & P. B. L. R. CO.

v.PARKER et al.

Supreme Court of Appeals of Virginia.

March 21, 1929.

Error to Circuit Court of City of Norfolk.

Action by.T. R. Parker against the Norfolk & Portsmouth Belt Line Railroad Company and another. From a judgment adverse to it defendant named brings error. Affirmed in part, reversed in part and rendered.

Willcox, Cooke & Willcox, of Norfolk, for plaintiff in error.

W. R. L. Taylor and Kelsey & Jett, all of Norfolk, for defendants in error.

HOLT, J. This is an action by motion for the recovery of damages occasioned by personal injury, charged to have been negligently inflicted.

J. R. Parker, the plaintiff, was caretaker on the Mt. Vernon, a ship out of commission belonging to the United, States Shipping Board and moored alongside of Pier No. 1 of the Norfolk army base. On the afternoon of June 6, 1927, in company with one Fisher, employed in like capacity on another vessel he went to C. H. Morecock's store, but a short distance away, where supplies were purchased, including a five-gallon can of oil. These purchases, except the oil can, More-cock put in the back of his automobile, a Chevrolet closed car, known to the trade as a coach. Fisher sat on the back seat with the groceries. Parker was on the right side in the front seat with his right arm out of the open window, that he might hold the oil can in place, put on the running board at Morecock's suggestion. The car was driven by a negro boy, about 17 years old, named Lomax, who was, of course, on the left-hand front seat, at the wheel. All of this was done at the instance of Morecock, who said to Lomax, "James, take Parker there and Fisher and their supplies back to the boat. * * * Put that oil can on the running board and Parker can take care of it" It was for this purpose that the car was sent on its way. As it started, a boy named Westcott asked for a ride, was given permission, and jumped upon the running board on the left and opposite side from where the oil can was.

Thus loaded, the automobile, with its passengers, went into the army base, and was driven along a concrete roadway, which runs north and south across the front of its piers, pier No. 1 included. That pier is an inclosed shed about 1, 000 feet long on which are three railroad tracks. There are two driveways across these tracks at the entrance to the pier shed, with a space of cinders between. Measured by the direction in which the automobile was going, the pier was on the right. A freight car, whose end was flush with its entrance, stood on the first track, and on the second was a switch engine, owned and operated by the defendant railroad. When the front wheels of the automobile had reachedthe far rail of the first track, the approaching yard engine was, for the first time, seen. Parker called to the driver, "Look out 1" He turned slightly to the left, but continued on his way, and the collision occurred as he was crossing the second track. The tender of the yard engine, which was hacking out, struck the automobile on the right side where the plaintiff sat, and pinned his right arm to the car. One of its bones was fractured, and the tendons between the elbow and wrist severed. There were also some superficial wounds of the face caused by broken glass. The injury to the arm was below the elbow, and the forearm is now apparently permanently useless. At the time he was hurt, plaintiff's salary was $82.50 a month.

The railroad and Morecock were sued as joint tort-feasors. In due course the issues were submitted to a jury, which found a verdict against the railroad in the sum of $15,000, and found, also, that Morecock was not guilty. This verdict was confirmed by the trial court, and its judgment is now before us on a writ of error.

Both of the defendants filed pleas in abatement. The substance of the claim there made is that the cause of action arose in the United States army base, which, though physically within the corporate limits of the city of Norfolk, is not a part thereof, nor of the state, but with the consent of the state of Virginia was purchased by, and is now owned by, the United States of America, the effect of which was to vest in the federal government, under the provisions of article 1, § 8, cl. 17, of the Federal Constitution, exclusive jurisdiction.

This property was bought on February 20, 1918, and jurisdiction was ceded to the United States by an act of the General Assembly of Virginia, Acts 1918, p. 568, which provided that it should remain in the United States so long as its ownership or any interest therein continued.

The claim seems to be that the cause of action arose on a federal reservation, and that in no event can any rights thereunder be enforced in an action in a state court.

In Crook, Horner & Co. v. Old Point Comfort Hotel Co. (C. C.) 54 F. 604, it was held that the laws of Virginia applied on the army post at Fortress Monroe, unless they, in some measure, interfered with the purposes for which it was held, since it was ceded rather than purchased, and it is argued from this that they would have been without force, if there had been a purchase, as that term is ordinarily used. In other words, it is said that, but for the cession of the land, there was no civil law in force there inherited from the state. Judge Hughes did not think so, for, in the course of his opinion, he observed: "While Congress has enacted a complete criminal code in relation to crimes committed within places within which it has exclusive jurisdiction and on the high seas, it has provided no laws for the government in civil matters of the inhabitants of forts, arsenals magazines, and dock yards. These places, when acquired in the manner defined by the clause of the national Constitution just quoted, are without laws in civil matters, except such general laws as may have been in force respectively in the States from which the United States derived them at the time of acquisition."

There is no body of federal common law apart from the common law in the several states, in the sense that there is a body of federal statutes distinct from those of the states. "But it is an entirely different thing to hold that there is no common law in force generally throughout the United States." Kansas v. Colorado, 206 U. S. 46, 27 S. Ct. 655, 51 L. Ed. 956, and it does not follow that exclusive federal jurisdiction takes the territory from out of its operation. That system of jurisprudence is followed, unless set aside by the Federal Constitution or by some act of Congress, and federal courts administer it every day. This rule is generally observed throughout the United States, unless the territory in question, when acquired, was governed by some other system of laws, the civil law, for example. Shively v. Bowlby, 152 U. S. 9, 14 S. Ct. 548, 38 L. Ed. 331; Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 21 S. Ct. 561, 45 L. Ed. 765; Kansas v. Colorado, 206 U. S. 46, 27 S. Ct. 655, 51 L. Ed. 956; Ex parte be Vore, 18 N. M. 246, 136 P. 47. Federal jurisdiction is exclusive on the army base. No attempt has been made to encroach upon it. This is all that has been done. A state court has sought to enforce in a transitory action a common-law right which originated there, and this it may do.

Foley v. Shriver, 81 Va. 568, is relied upon as establishing a different rule. The court there merely decided that "The National Home for Disabled Volunteer Soldiers" was under exclusive federal jurisdiction, and said: "The officers of the said 'The National Home for Disabled Volunteer Soldiers' are disbursing officers of the United States government, and the money in their hands as such, appropriated by act of Congress for public uses, is the money of the United States until applied to the designated ends, and cannot be reached by garnishee process in the hands of the public officials, nor subject to attachment. Buchanan v. Alexander, 4 Howard, 20 ; Tracy v. Hornbuckle, 8 Bush. [Ky.] 336; Bulkley v. Eckert, 3 Pa. 368 ; Chealy v. Brewer, 7 Mass. 259."

When the right is transitory, action may be brought wherever the defendant can be found, provided he is personally served with process. Burks' Pleading and Practice, p. 65.

If there were ever any doubt, it is dissipated by Ohio River Contract Co. v. Gordon, 244 U. S. 68, 37 S. Ct. 599, 61 L. Ed. 997. That contract company was an Indiana corporation, and was engaged within the geographical limits of Kentucky in constructing for the United States government certain canal locks and dams on land known as the canal reservation, which had been acquired by the government, through purchase or condemnation. Earth and rock excavated on it by this company were hauled by it to lands outside of the reservation, and dumped. The accident occurred on the reservation. It is to be observed that it was not even claimed that no cause of action existed, but only that the jurisdiction of the federal government was exclusive, and that process was void, since the company was not doing business in the state of Kentucky. No one of these contentions was sustained. The court said: "The remaining contentions are also, we think, without merit. Conceding, for the sake of the argument only, that the canal reservation was within the exclusive legislative jurisdiction of Congress, it is clear from the facts we have stated that the business carried on by the corporation was not confined to the land owned by the United States, since it is admitted that, in order to dispose of the material excavated in the construction of the canal, a line of railway was built which extended beyond the reservation and connected with the tracks of the Kentucky and Indiana Terminal Railway, upon whose property all of the earth and rocks were dumped. This clearly constituted the doing of business within the State and subjected the corporation to the jurisdiction of the Kentucky court. Assuming also, for argument's sake only, that the original summons was void because served on the...