Sellers v. Carolina R. Co.

• Decision Date: 20 September 1933
• Docket Number: 309.
• Citation: 170 S.E. 632,205 N.C. 149
• Parties: SELLERS v. CAROLINA R. CO. et al.
• Court: North Carolina Supreme Court

170 S.E. 632

205 N.C. 149

SELLERS v. CAROLINA R. CO. et al.

No. 309.

Supreme Court of North Carolina

September 20, 1933

Appeal from Superior Court, Lenoir County; Cranmer, Judge.

Action by Lillian F. Sellers, administratrix of A. J. Sellers against the Carolina Railroad Company and others, From the judgment, defendants appeal.

Reversed.

Plaintiff alleged that her husband, the intestate, was injured and killed on November 26, 1931, by reason of the negligence of the agents and employees of the Carolina Railroad Company and the Norfolk Southern Railroad Company. On July 28, 1932, the judge of the District Court of the United States for the Eastern District of Virginia, by order duly made and entered placed the defendant Norfolk Southern Railroad Company in receivership, and appointed the defendants G. R. Loyall and L. H. Windholz as receivers of said company.

The summons was issued by the plaintiff on September 14, 1932 and was served September 15, 1932, on W. J. Nicholson "agent for Norfolk Southern Railroad Company," and W. J. Nicholson, "agent for G. R. Loyall and C. H. Windholz, receivers of Norfolk Southern Railroad Co." The summons for the Carolina Railroad Company was issued on September 14, 1932, and served September 15, 1932, upon "J. C. Poe, Superintendent and agent for Carolina Railroad Company." The Carolina Railroad Company is a corporation of North Carolina. Thereafter the Norfolk Southern Railroad Company made a special appearance and moved to dismiss the action for that there had been no proper service of summons, for the reason that "neither J. C. Poe nor W. J. Nicholson, the parties on whom the summons in this case was served, is now, was when said summons was served, nor has been, since July 28, 1932, an officer, agent, servant or employee of Norfolk Southern Railroad Company, but are now, were when said summons was served, and have been, since July 28, 1932, in the employment of G. A. Loyall and L. H. Windholz, receivers of Norfolk Southern Railroad Company, and therefore, were not the parties on whom process against Norfolk Southern Railroad Company could be served according to the statute of North Carolina."

At the same time the receivers of the Norfolk Southern Railroad Company made a special appearance and filed a like motion to dismiss the action upon the same ground, and upon the further ground that the plaintiff had not procured a leave of the federal court to institute said suit, and that the order appointing the receivers "does not permit the said receivers to be sued for any alleged acts of the corporation, Norfolk Southern Railroad Company, accruing prior to their appointment, without the express approval and consent of the District Court of the United States for the Eastern District of Virginia."

The defendant Carolina Railroad Company made a special appearance and filed a motion to dismiss upon the ground that summons had been served upon J. C. Poe, and that J. C. Poe was not an officer, agent, servant, or employee of the Carolina Railroad Company at the time of the issuance and service of summons, and had not been such agent since July 28, 1932.

The motions so made by the defendants were supported by affidavit of J. C. Poe, who declared therein that he was not an agent of the Carolina Railroad Company on the 15th day of September, 1932. The plaintiff offered the affidavit of R. A. Whitaker to the effect that J. C. Poe was superintendent of the Carolina Railroad Company at the time of plaintiff's death in November, 1931, and that affiant had conducted certain correspondence with J. C. Poe with reference to the settlement of plaintiff's claim, beginning in February, 1932, and terminating on May 13, 1932. The letters of Poe to plaintiff's attorneys bear the legend "Carolina Railroad Company, J. C. Poe, Superintendent." There was no communication between the plaintiff and Poe subsequent to May 13, 1932, and no evidence tending to show any official act of Poe subsequent to July 28, 1932, when the receivership order was signed. Plaintiff offered the affidavit of F. E. Wallace, stating that as late as June 3, 1932, "J. C. Poe was the acting superintendent of the Carolina Railroad Company, and as such was making efforts to dispose of the property of the said Carolina Railroad Company and was in charge thereof."

Upon the motions and affidavits, the trial judge was of the opinion that summons had been properly served on both defendants, and found that Poe "was the superintendent and agent of said Carolina Railroad Company *** and W. J. Nicholson was agent for the receivers of the Norfolk Southern Railroad Company at the time the summons was served."

From the foregoing judgment, the defendants appealed.

Rouse & Rouse, of Kinston, for appellants.

Whitaker & Allen and ...