Tate v. Southern Railway Co.

169 S.E. 816, 205 N.C. 51, 1933 N.C. LEXIS 458

• Court: Supreme Court of North Carolina
• Decided: June 28, 1933
• Status: Published

Opinion

Adams, J.

The appeal is prosecuted from an order of the Superior Court denying the petition of the Southern Eailway Company for a removal of the cause to the District Court of the United States for the Western District of North Carolina.

When a motion to remove a cause is made on the ground of a separable controversy, the plaintiff may have the question heard and determined upon the allegations in his complaint and the requisite separability does not exist if according to such allegations the defendants are jointly liable. R. R. v. Thompson, 200 U. S., 206, 50 L. Ed., 441; R. R. v. Miller, 217 U. S., 209, 54 L. Ed., 732; Swain v. Cooperage Co., 189 N. C., 528; Crisp v. Fibre Co., 193 N. C., 77.

It is not contended, however, that the motion should be allowed for this cause. The petitioner is a public carrier incorporated in Virginia and domesticated in North Carolina; Banks is a resident of Buncombe County in this State. The petition is founded on the alleged fraudulent joinder of the individual with the corporate defendant and the merits must be determined by the application of another principle.

Without reviewing the numerous authorities on the subject we need only repeat the familiar rule that the jurisdiction of the State court comes to an end when in apt time the petitioner files a proper bond and a verified petition setting forth facts sufficient to require a removal under the law. The State court may pass upon the sufficiency of the bond and the petition, but the petitioner’s allegations of fact are deemed to be true and if the plaintiff wishes to do so be may traverse the jurisdictional facts in the Federal Court on a motion to remand. Rea v. Mirror Co., 158 N. C., 28; Lloyd v. R. R., 162 N. C., 485; Smith v. Quarries Co., 164 N. C., 338; Crisp v. Fibre Co., supra; C. & O. R. R. v. Cockrell, 232 U. S., 146, 58 L. Ed., 544. The rule applies only to such issues of fact as control and determine the right of removal and tho petition must contain a full and direct statement of facts adequate, if true, to establish the fraudulent purpose. Lloyd v. R. R., supra.

In these respects the petition is sufficient. It sets forth the facts relating to jurisdiction, to the allegations in the complaint, to the circumstances under which the assault was committed, and proceeds with elaborate averments in substance as follows: The controversy, with every issue of law and fact therein, is between the plaintiff, a resident of this State, and the petitioner, a nonresident; the defendant Banks is an improper party; previously to the homicide be bad been appointed by the Governor of North Carolina as a railroad policeman, bad given bond, bad taken the prescribed oath, and at the time of the assault was acting exclusively in bis official capacity and not by virtue of any alleged employment by the petitioner, or as its agent, servant, or employee. This, in effect, is the purport of the petition. It is more than a mere denial of the complaint, which would be insufficient (Lloyd v. R. R., supra) ; it was designed to be a specific averment that Banks was acting as an officer of the law.

He was appointed as policeman pursuant to C. S., 3884 et seq. Whether at tbe time referred to be was acting only in an official capacity is not a legal conclusion essentially dependent upon a construction of these statutes. There are numerous decisions of different courts on tbe question of tbe liability of an employer for tbe acts of special policemen. Tbe decisions indicate that such officers act sometimes as servants of tbe company by whom they are employed and sometimes as officers of tbe State. In McKain v. Baltimore & O. R. Co., 23 L. R. A. (N. S.), 289, it said that tbe line of distinction marks tbe point at which tbe act ceases to be one of service to tbe employer and becomes one of vindication of public right or justice, tbe apprehension or punishment of a wrongdoer, not for tbe injury done to tbe employer, but to tbe public at large; also, that such appointees, though paid for their services by tbe persons at whose instance they are appointed, are not servants of such persons in respect to all tbe acts they perform by virtue of their offices, but only in respect to services rendered the company, such as defending or preserving its property.

Tbe weight of.authority maintains the position that special officers appointed by the State for police duty at the expense of a railway company or other corporation are prima facie public officers, for whose acts, as such officers, the corporation procuring the appointment is not liable; but if such officers are engaged in the performance of duties which they owe to their employers by reason of their employment and are acting within the scope of their powers and duties, they will be deemed servants or employees, and for their negligent or wanton acts done in the performance of assigned duties, their employers may be liable. McKain v. Baltimore & O. R. Co., supra; Hershey v. O’Neill, 36 Fed., 168; Hardy v. Chicago, M. & St. P. R. Co., 58 Ill. App., 278; Tucker v. Erie R. Co., 69 N. J. L., 19; Sharp v. Erie R. Co., 184 N. Y., 100; Healey v. Lothrop, 171 Mass., 263; Milton v. Missouri P. R. Co., 193 Mo., 46, 4 L. R. A. (N. S.), 282; Tyson v. Joseph H. Bauland Co., 9 L. R. A. (N. S.), 267.

Whether at the time he shot the deceased Banks was acting in his capacity as servant or public officer is a question of fact for the jury. The petitioner’s allegation that he was acting in the latter capacity must be taken as true, subject to traverse by the plaintiff in the Federal Court. Judgment

Reversed.