Lloyd v. North Carolina Railroad

Hoke, J., after stating the case: The plaintiff in express terms bases his cause of action on the Federal Employers’ Liability Act of 1908 (35 U. S. St., 65 Ch., 149) as amended on 5 April, 1910 (36 U. S. St., 291 Fed., 143), and in his complaint makes allegation sufficient to establish liability on the part of both, of defendant companies. The statute in question confers a right of action against all common carriers by railroad engaged in interstate- commerce and in favor of all employees “while engaged in such commerce or their representatives when injured or killed by reason of the negligence of any officers or agents of the employee of such carrier or by reason of any defect or insufficiency due to its'negligence in its cars, engines, appliances, machinery, track, roadbed, ways or walks.” — 493 — Tbe law in question bas received very full consideration by tbe - Supreme Court of tbe United States in several cases reported in 223 U. S., p. I, styled tbe Second Employers’ Liability cases, and it was there held, among other things: “That tbe same is constitutional; that its provisions and regulations have superseded tbe laws of the several States in so far as tbe latter cover tbe same field; and that rights arising under tbe regulations prescribed by tbe act may be enforced as of right in tbe courts of tbe States where their jurisdiction as fixed by local laws is adequate.” And tbe amendment of 1910 contains provision that “Tbe jurisdiction of tbe courts of tbe United States under this act shall be concurrent with that of tbe courts of tbe several States, and 'No case arising under this act and brought in any State court of competent jurisdiction shall be removed to any court of tbe United States.’ ” 36 U. S. St., Ch. 143, p. 291. It was no doubt tbe purpose and effect of this amendment, as its terms clearly import, to withdraw tbe right of removal in cases arising under tbe statute when tbe action bas been instituted in tbe State court, and to require that litigants desiring to have tbe results of tbe trial reviewed by reason of tbe. presence of a Federal question, etc., shall proceed by writ of error to tbe State court making final disposition of tbe cause in its jurisdiction. All tbe decisions to which we were referred upholding tbe right of removal in such cases (Lemon v. R. R., 137 Ky., 276; Calhoun v. Centrol of Ga., 528, and others) were causes disposed of prior to tbe amendment, and which no doubt gave rise to its enactment. And if, as defendants contend, tbe same right of removal exists as in cases of fraudulent joinder of a resident with a nonresident defendant, tbe application should be denied in this instance. On this question tbe authorities are to tbe effect that when viewed as a legal proposition tbe plaintiff is entitled to have bis cause of action considered as be bas ^presented it in bis complaint (R. R. v. Miller, 217 U. S., 209; R. R. v. Thompson, 200 U. S., 206; Dougherty v. R. R., 126 Fed., 239), and while a case may in proper instances be removed on tbe ground of false and fraudulent allegation of jurisdictional — 494 — facts, tbe right does not exist, nor is the question raised by general allegations of bad faitb, but only when, in addition to t'he positive allegation of fraud, there is full and direct statement of the facts and circumstances of the transaction sufficient, if true, to demonstrate “that the adverse party is making a fraudulent attempt to impose upon the court and so deprive the applicant of his right of removal.” Rea v. Mirror Co., 158 N. C., 24-27, and authorities cited, notably, Kansas City R. R. v. Herman, 187 U. S., 63; Foster v. Gas and Electric Co., 185 Fed., 979; Shane v. Electric Ry., 150 Fed., 801; Knutts v. Electric Ry., 148 Fed., 73; Thomas v. Great Northern, 147 Fed., 83; Hough v. R. R., 144 N. C., 701; Tobacco Co. v. Tobacco Co., 144 N. C., 352; Ill. R. R. v. Houchins, 121 Ky., 526; So. R. R. v. Gruzzle, 124 Ga., 735. True, it is now uniformly held that when a verified petition for removal is filed, accompanied by a proper bond, and same contains facts sufficient to require a removal under the law, the jurisdiction of the'State court is at an end. And in such case it is no.t for the State court to pass upon or decide the issues of fact so raised, but it may only consider and determine the sufficiency of the petition and the bond. Herrick v. R. R., 158 N. C., 307; Chesapeake v. McCabe, 213 U. S., 207; Weaker v. Natural Enameling Co., 204 U. S., 176, etc. But this position obtains only as to such issues of fact as. control and determine the right of removal, and on an application for removal by reason, of fraudulent joinder such an issue is not pre-seated by merely stating the facts of the occurrence showing a right to remove, even though accompanied by general averment of fraud or bad faith, but, as heretofore stated, there must be full and direct statement of facts, sufficient, if true, to establish or demonstrate the fraudulent purpose. Hough v. R. R., 144 N. C., 692; Tobacco Co. v. Tobacco Co., 144 N. C., 352; Shane v. Ry., 150 Fed., 801. In Rea v. Mirror Co., supra, the principle v^as applied where plaintiff had sued a nonresident corporation doing a manufacturing business in this State, to recover-for physical injuries suffered by plaintiff and alleged to be by reason of some negligence of the company in the operation of its machinery, and a resident employee was joined as — 495 — codefendant. Tbe nonresident company, in apt time, filéd its duly verified petition, accompanied by proper bond, setting forth the facts of the occurrence .with great fullness of detail, charging a fraudulent joinder of the resident employee, and containing averment further that “said employee was a member of the company’s clerical force in the office of the company, having nothing whatever to do with the machinery or its management, and that he was not present in the factory at the time of the injury.” The petition for removal was allowed, the Court being of opinion that, if these facts were established, it would make out the charge of fraudulent joinder and bring the case within the principle of Wecker v. Natural Enameling Co., 204 U. S., 176; but no such facts are presented here. While the petitioner alleges a fraudulent joinder of the North Carolina Railroad and denies that the plaintiff was 'engaged in interstate commerce, etc., it will appear from a perusal of the pleadings and the admissions of record not inconsistent therewith,' that plaintiff, at the time of the injury, was an employee of the defendant’ as locomotive engineer; that he had been operating the engine in question over á portion of the North Carolina Railroad, used as a part of the north and south trunk line of the Southern Railway and on to Monroe in the State of Virginia, and engaged in moving interstate freight trains; that this engine, having been taken to the shops f.or repairs, was at the precise time of the injury on a side-track connecting with the North Carolina Railroad main line, ready for a trial trip to Barber Junction, and plaintiff was engaged in inspecting and oiling said engine for the purpose of taking said trip and with a view of further service for the company. It has long been understood that the term interstate commerce will include the instrumentalities' and agencies by which the same is conducted, and that the power of Congress will extend to the regulation of these instrumentalities, including the right to legislate for the welfare of persons operating the same (Employers’ Liability cases, 223 U. S., 1; Interstate Commerce Commission v. Ill. Central R. R., 215 U,. S., 452), and from- the admitted facts of defendant’s petition and some of the re’cent decisions construing this, statute and that entitled “Safety Appliance — 496 — Act,” 27 U. S. Statutes, cb. 196, said by an intelligent writer to be of great aid to the proper construction of the former, Thornton on Employers’ Liability and Safety Appliance Act (2d Ed.), p. 40, there is grave reason to doubt if plaintiff’s allegations as to the. character of this transaction are not properly made (Southern Ry. v. U. S., 222 U. S., 20; Johnson v. So. Pac. R. R., 196 U. S., 1; Thornton (2d Ed.), p. 50 et seq.), and assuredly it may not be said that the charge of fraud must be necessarily inferred. As to the judgment of nonsuit, submitted to by plaintiff, in deference to an adverse intimation of his Honor, here we are required to consider the ea§e as presented by the allegations and evidence of the plaintiff and interpret such evidence in the light most favorable to him (Henderson v. R. R., 159 N. C., 581, and Deppe v. R. R., 152 N. C., 79), and, considering the record in that respect, it will appear that plaintiff, at the time of the injury, was an employee of the defendant, the Southern Eailroad, assigned for duty over that part of the line from Spencer, N. C., to Monroe, Va., and had for 'some time been engaged on Engine 579 in hauling interstate freight trains over this part of the Southern system, and which included that portion of the North Carolina Eailroad between Spencer and Greensboro. That this was being done by the Southern road with the consent of the North Carolina Eailroad, and while operating under the franchise of that company. That at the precise time of the injury, the engine was on a siding, and while off the right of’ way of the State road, the siding was connected with the main line of such road at either end and the engine was being oiled and inspected by plaintiff with the present purpose of making a trial trip from Spencer to Barber Junction, which could only be done by passing over a portion of the State road, and it was always necessary for engines repaired in said shops to pass over the lines of the North Carolina road in order to get on the other lines of the Southern. Without present and final decision of the question thus presented, we are- clearly of opinion that it is a permissible inference from these facts that, as to the North Carolina Eailroad also, the plaintiff’s cause of action is well laid, and the order of-nonsuit must be reversed. Southern v. U. S., 222 U. S., 20; Logan v. R. R., 116 N. C., 940. — 497 — Having beld that the cause has been erroneously nonsuited as to the North Carolina Eailroad Company, the petition for removal on the ground of diversity of citizenship (the second petition) is necessarily denied; and in any event, this would be the correct view. It is true that when a suit has been instituted against a resident and a nonresident defendant, and pending the cause plaintiff elects to discontinue his suit as to the resident party, the right of removal by reason of diversity of citizenship will then arise to the other (Powers v. Ry., 169 U. S., 92) ; but that is when the discontinuance is by voluntary action of the plaintiff, and does not obtain when the nonsuit has been taken in deference to an adverse intimation "of the court and the plaintiff is insisting on his right to have the same reviewed on appeal, and is in a position to assert it. This we think is a fair interpretation of the record. The court having made the entry and entered same in the judgment that the nonsuit was taken in deference to an adverse intimation of the court, and plaintiff having made this as one of his assignments of. error, in such case the order of nonsuit must be considered as having been taken in iwvitum (Hayes v. R. R., 140 N. C., 131; Mobley v. Watts, 98 N. C., 284), bringing the case within the principle of Whitcombe v. Southern, 175 U. S., 635, and requiring that the right of removal should be made to depend upon conditions existent at the time of filing the first petition. There is error, and this will be certified, that the order of removal and order of nonsuit be set aside and the cause restored to the docket for trial as originally instituted. Beversed.