Amos v. Southern Railway Co., 236 N.C. 764 (1953)

Jan. 6, 1953 · Supreme Court of North Carolina

236 N.C. 764

RAY R. AMOS v. SOUTHERN RAILWAY COMPANY, ATLANTIC & YADKIN RAILWAY COMPANY and NORFOLK & WESTERN RAILWAY COMPANY.

(Filed 6 January, 1953.)

Appeal and Error § 50 % —

Where the identical question sought to be presented by the appeal is pending before the Supreme Court of the United States and its decision thereon will be binding upon our Court, the cause will be retained.

Appeal by plaintiff from Patton, Special Judge, October Term, 1952, of Fobsyth.

This is an action to recover for personal injuries alleged to have been sustained by the plaintiff on 16 April, 1949, while in the employment of the defendants. The accident occurred in Stokes County, North Carolina.

On 14 December, 1951, the plaintiff instituted an action against the Southern Railway Company in the Circuit Court of the City of St. Louis, Missouri, to recover for his alleged injuries under the provisions of the Federal Employers’ Liability Act. The Southern Railway Company answered, denying that the plaintiff was its employee and pleaded a release theretofore given to the Atlantic & Yadkin Railway Company and the Norfolk & Western Railway Company. The action is still pending in the Missouri court. Thereafter, on 15 April, 1952, the plaintiff instituted this suit on the same cause of action in the Superior Court of Forsyth County, North Carolina, seeking to recover under the provisions of the Federal Employers’ Liability Act from the three defendants named herein.

The Southern Railway Company filed a petition in the cause in the Superior Court of Forsyth County, praying that the plaintiff be enjoined from further prosecuting the Missouri action. The court heard the matter, found the facts set out in the order, and permanently enjoined the plaintiff from any further prosecution of the Missouri suit. The plaintiff appealed from the order, assigning error.

Elledge ■& Johnson for plaintiff, appellant.

Wornble, Carlyle, Martin & Sandridge for defendant, Southern Bail-way Company, appellee.

Per Curiam.

The Supreme Court of the United States has granted a petition for writ of ceriio.rari in the case of Atlantic Coast Line R. Co. v. Pope, 209 Ga. 187, 71 S.E. 2d 243, and the case is now calendared for argument in that Court. The case involves the identical question presented for decision on this appeal. And since we will be bound by the decision of the Supreme Court of the United States on the question, we are withholding disposition of this appeal until the Supreme Court of the United States renders its decision in the aboye case.

Cause retained.