North Carolina R. Co. v. Story

• Decision Date: 20 February 1924
• Docket Number: 385. [a1]
• Citation: 121 S.E. 433,187 N.C. 184
• Parties: NORTH CAROLINA R. CO. v. STORY, SHERIFF OF ALAMANCE COUNTY ET AL.
• Court: North Carolina Supreme Court

121 S.E. 433

187 N.C. 184

NORTH CAROLINA R. CO. v. STORY, SHERIFF OF ALAMANCE COUNTY ET AL.

No. 385. ^[a1]

Supreme Court of North Carolina

February 20, 1924

Appeal from Superior Court, Guilford County; Thos. J. Shaw, Judge.

Suit by the North Carolina Railroad Company against C. D. Story Sheriff of Alamance County, and P. M. King, administrator of Maggie Barber, deceased. From judgment for defendants plaintiff excepts and appeals. Affirmed.

The action is for a permanent injunction restraining defendants from collecting or attempting to collect by execution and levy a certain judgment obtained by P. M. King, administrator of Maggie Barber, deceased, against the North Carolina Railroad Company, hereafter called plaintiff. On the facts presented, the application for further continuance of the restraining order was denied. The court below, however, in the exercise of a discretion vested in it by a recent statute (chapter 58, Laws of 1921), adjudged that the preliminary order be continued pending the appeal to this court. From so much of the judgment as refuses to continue the restraining order to the hearing, and also make the same permanent plaintiff excepts and appeals, etc.

Where a judgment was obtained against a railroad company on a cause of action involving its liability for injuries during federal control, and upon nonpayment of such judgment a suit was brought thereon wherein the question of its liability was again raised and a second judgment against it recovered, and both of such judgments remained unquestioned by either appeal or writ of error, or other process looking to modification or review, the railroad was not entitled to an injunction restraining execution and levy.

Wilson & Frazier, of Greensboro, and Manly, Hendren & Womble, of Winston-Salem, for appellant.

W. P Bynum and R. C. Strudwick, both of Greensboro, for defendants.

HOKE J.

As we understand there is no substantial difference between the parties as to the facts affecting their rights, and from these facts contained in the present record, and by proper reference in the case of King v. Railroad, 184 N.C. 442, 115 S.E. 172, it appears that plaintiff is lessor of the Southern Railway Company, under a lease for 99 years, which is still existent, and, under the terms of said lease and our state decisions applicable, is liable for the torts and wrongs of the Southern Railway Company, its agents and employees, committed in the use and operation of plaintiff road, and in the exercise of its franchise (Mabry v. Railroad, 139 N.C. 388, 52 S.E. 124, citing Aycock v. Railroad, 89 N.C. 321, and Logan v. Railroad, 116 N.C. 940, 21 S.E. 959, and other cases); that in February, 1920, P. M. King, administrator of Maggie Barber, deceased, sued the plaintiff railroad, alleging that his intestate had been negligently run over and killed by the agents and employees of the Southern Railroad, "operating plaintiff's railroad under the Director General of the United States, etc., pursuant to the acts of Congress," etc.

The plaintiff answered denying liability and alleging that plaintiff's road at the time was under the control of the Director General of the United States under the acts of Congress and executive orders appertaining to the subject, and denied that the intestate was killed or injured by the negligence of its lessee or any of its agents or employees, etc.

On issues submitted, the administrator recovered judgment for $2,500 for the negligent and wrongful killing of the intestate by the lessee, and plaintiff excepted and prayed an appeal, but, failing to prosecute the same, the judgment for said amount stands unchallenged and unquestioned by any writ of error or other process looking to a modification or review of the same.

Said judgment not being paid, the administrator instituted an action thereon, alleged the existence of the judgment, its nonpayment, etc., and thereupon plaintiff answered admitting the recovery of said judgment, but denied any and all liability thereon, setting forth its defense in effect as follows:

"To this complaint defendant answered, admitting the recovery and existence of the judgment sued on, but alleged that same was not a valid or binding judgment, because it was obtained for the wrongful death of intestate caused by the negligence of the employees and agents of the government of the United States while the properties of defendant were being operated and controlled by the Director General of Railroads, under and by virtue of the acts of Congress and the orders of the President of the United States, and for that reason said judgment is illegal and void. Defendant alleged further, in effect, that this alleged negligent killing took place when its road and all equipment, etc., was in control and charge of the government under the acts of Congress and orders aforesaid, and at a time when none of the agents and employees, etc., of defendant or its lessees were engaged in operating said road or in any way responsible for said death, and to hold it liable for such an injury under such circumstances would be to take defendant's property without due process of law, etc.

And in supplemental answer, filed by leave of court, alleged further that the present action on the judgment in behalf of defendant was in the endeavor to evade in some way the provision contained in the act of Congress known as the Transportation Act of 1920, § 206, subd. (g) (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4cc), in terms as follows: 'No execution or process, other than on a judgment recovered by the United States against a carrier, shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under federal control.' And defendant pleads further provisions of said Transportation Act in bar of recovery on the judgment."

And the administrator having demurred, there was judgment sustaining the demurrer in terms as follows:

"This cause coming on to be heard upon plaintiff's demurrer to the answer of defendant, it is now considered and adjudged by the court that said demurrer be and the same is hereby sustained. It is further considered and adjudged by the court that the plaintiff have and recover of defendant $2,500, with interest thereon from March 21, 1921, and the further sum of $95.65, with interest from same date, and the cost of this action to be taxed."

From this judgment plaintiff excepted and appealed to this court, where the judgment sustaining the demurrer was affirmed. See case of King v. Railroad, 184 N.C. 442, 115 S.E. 172. And the opinion having been certified down, there was further judgment as follows:

"In

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