Allen v. Southern Railway Co.

124 S.E.2d 871, 256 N.C. 700, 1962 N.C. LEXIS 527, 49 L.R.R.M. (BNA) 3131

• Court: Supreme Court of North Carolina
• Decided: April 11, 1962
• Status: Published

Opinion

Per Curiam.

This case was before this Court at the Fall Term 1958. An opinion, delivered by Bobbitt, J., for a majority of the Court was filed at the Spring Term 1959. Allen v. R. R., 249 N.C. 491, 107 S.E. 2d 125. That opinion gives an adequate summary of the pleadings, evidence, issues of fact, preliminary proceedings, and judgment in the trial court. A repetition of these matters and a restatement of the legal questions involved are unnecessary here.

After our decision at the Spring Term 1959, plaintiffs, in apt time, filed a petition to rehear. The petition was allowed on 20 May 1959 by the two Justices to whom it was referred, but the Court deferred rehearing pending decision on appeal in a Georgia case originally captioned Looper v. Georgia, Southern & Florida Railway Co., 213 Ga. 279, 99 S.E. 2d 101, and later captioned International Association of Machinists v. Street, 215 Ga. 27, 108 S.E. 2d 796.

The Unions, under 28 U.S.C.A., s. 1257 (1), appealed the latter decision of the Supreme Court of Georgia to the Supreme Court of the United States which, on October 12, 1959, noted probable jurisdiction. 361 U.S. 807, 4 L. Ed. 2d 54, 80 S. Ct. 84. The cause was argued twice in the Supreme Court of the United States, having been reargued on January 17 and 18, 1961. It was decided June 19, 1961. International Association of Machinists v. Street, 367 U.S. 740, 6 L. Ed. 2d 1141, 81 S. Ct. 1784.

After the decision of the Supreme Court of the United States in the Street case, a rehearing of our former decision, by oral arguments and by briefs, was held.

Before a decision acceptable to and in accordance with the opinion of a majority of this Court was reached, Winbome, C.J., retired from the Court, Denny, J., was elevated to Chief Justice, and Sharp, J., was appointed to fill the vacancy on the Court. Justice Sharp, formerly a Superior Court Judge, is disqualified and declines to take part in the consideration and decision of this appeal for the reason that she presided at a hearing and entered an interlocutory order in this case at the Superior Court level.

This leaves the Court evenly divided. Three Justices are of the opinion that the judgment of the Superior Court should be affirmed. Three are of the opinion that there was error in the trial below.

The Court being equally divided, the judgment below is affirmed. The judgment appealed from stands, but not as a precedent. Schoenith v. Realty Co., 244 N.C. 601, 94 S.E. 2d 592; Ward v. Odell, 126 N.C. 946, 36 S.E. 194.

Affirmed.

SháRP, J., took no part in the consideration or decision of this appeal.