Sellers v. Carolina Railroad Co.

BeogdeN, J. (1) Was it necessary for the plaintiff to obtain leave of the Federal Court, permitting or allowing this action for wrongful death to be instituted? (2) Does the order appointing the receivers for the Norfolk Southern Eailroad grant such necessary leave or permission? (3) Was there any evidence that J. 0. Poe was agent of the Carolina Eailroad Company at the time the action was instituted, to wit, 14 September, 1932? U. S. C. A., section 125, provides that “every receiver ... of any property appointed by any court of'the United States may be sued in respect to any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver . . . was appointed, etc.” Hence the inquiry *152 arises: Was tbe death of plaintiff’s intestate caused by the receivers or tbeir agents, or was the alleged negligent killing of plaintiff’s intestate “any act or transaction of his in carrying on the business connected with such property,” etc.? It was alleged that the plaintiff’s intestate was killed on 26 November, 1931. The receivers were appointed in July, 1932. Consequently the cause of action existed before the appointment of the receivers, and, therefore, such alleged negligent killing could not be due to any act or transaction of the receivers “in carrying on the business connected with such property.” The plaintiff insists that the receivers can be sued for wrongful death without leave of court, although the cause of action arose prior to the appointment of receivers, and cites in support of such contention Grady v. R. R., 116 N. C., 952, 21 S. E., 304; Wilson v. Rankin, 129 N. C., 447, 40 S. E., 310; Lassiter v. R. R., 163 N. C., 19, 79 S. E., 264. It is to-be noted, however, that in all of said cases the alleged wrongful death complained of occurred during the pendency of the receivership. Manifestly, leave of court was necessary when the cause of action arose several months prior to the order of receivership. See Oklahoma v. Texas, 265 U. S., 490, 68 L. Ed., 1116; Texas & Pacific R. R. v. Cox, 145 U. S., 593, 36 L. Ed., 829. The next question of law to arise is whether the order of receivership granted leave of court to institute the action. Said order after authorizing the receiver to institute and prosecute “all such actions, proceedings or suits as in his judgment may be necessary for the recovery or proper protection of said property” proceeds as follows: “and likewise to appear in and defend any and all actions, proceedings, or other suits which may be instituted and prosecuted against him as receiver in or before any such tribunal. Said receiver is further authorized and empowered whether before or after any action, proceeding or suit in respect thereof shall have been begun, to compromise and settle, and out of funds coming into his hands as receiver, pay claims and demands on all accounts accruing against him as receiver after the date of this order and arising out of his possession, maintenance or operation of the property of the railroad company.” The order further provides: “Said receiver is also authorized and empowered to appear in and conduct prosecution or defense of any and all actions, proceedings or suits now pending or which may hereafter be brought in any court ... in which the railroad company is or shall be a party. . . . Said receiver is further authorized and empowered, whether before or after any action, proceeding or suit in respect thereof shall have been begun, to compromise and settle claims and demands of all accounts which have accrued against the Railroad Company or which have arisen out of the possession, maintenance and operation by the Railroad Company of its property.” *153 Eeducing the language of the order to concrete propositions, it appears that the receivers are authorized (a) to appear and defend any and all actions prosecuted against them as receivers; (b) to compromise and settle claims arising out of possession, maintenance or operation of the property of the Eailroad Company; (c) to appear and defend all pending suits or those thereafter instituted, affecting the property in the custody of the receivers. As the court interprets the order, the wording thereof is not broad enough to constitute a general leave of court to any particular claimant to assert a liability arising prior to the appointment of the receivers. Indeed, the order is a delegation of power to the receivers and a direction as to the iierformance of their duties rather than an invitation to claimants to enter suits. Therefore, the court is of the opinion that the order of receivership cannot be reasonably interpreted as a specific permission to the plaintiff to institute this action. The third question of law relates to the service upon the defendant, Carolina Eailroad Company. The trial judge found as a fact that on 15 September, 1932, when the summons was served on J. C. Poe that he was then agent of the Carolina Eailroad Company. However, there is no evidence in the record of such agency subsequent to June, 1932. Hence the motions made by the defendants must prevail. Eeversed.