Flowers v. Aetna Casualty & Surety Co.

Citation154 F.2d 881
Decision Date17 April 1946
Docket NumberNo. 10200.,10200.
PartiesFLOWERS v. AETNA CASUALTY & SURETY CO. et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Hal E. Portrum, of Rogersville, Tenn., for appellant.

Clyde W. Key, of Knoxville, Tenn., for appellee.

Before ALLEN, MARTIN, and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellant complains of the order of the District Court dismissing this action for lack of jurisdiction, which involved the collateral action of the district judge in failing to rule upon the appellant's motion to remand the action to the state court.

The action was filed May 24, 1945, in the Chancery Court of Hawkins County, Tennessee, by the appellant Mrs. Fannie M. Flowers, as the widow of Edward E. Flowers, suing in her own right and in behalf of two minor children aged 15 and 12 years respectively, to recover benefits under the Workmen's Compensation Law of Tennessee, accruing by reason of the death of her husband on March 8, 1945, resulting from an accident arising out of and in the course of his employment with the defendant J. A. Jones Construction Company, a North Carolina corporation. The insurance carrier, Ætna Casualty & Surety Company, a Connecticut corporation, was also made a defendant. The bill alleged that 60% of the decedent's average weekly wages over the statutory period of payment was in excess of $5,000, the maximum recovery provided by the Act. The petitioner prayed judgment for the maximum amount together with burial expenses also recoverable under the Act. Summons against the Construction Company was directed to the Sheriff of Knox County, Tennessee, and served by him in that county. Summons against the Surety Company was executed in Hawkins County, Tennessee.

On May 29, 1945, the two defendants filed their petition to remove the action to the United States District Court for the Eastern District of Tennessee. The petition alleged that the plaintiff was a citizen of Tennessee; that the corporate defendants were citizens of North Carolina and Connecticut; that at the time of the death of the decedent his average weekly wage was in excess of $30.00, and "that the amount in controversy in said cause of action exceeds the sum of $3,000 exclusive of interest, penalty and costs." On June 5, 1945, the removal order was entered by the state court.

On June 28, 1945, the defendants moved the District Court to dismiss the complaint for the reason that the Construction Company had at no time engaged in business in Hawkins County, Tennessee, nor had any officer or agent in that county upon whom process might lawfully be served; that the accident occurred in Roane County, Tennessee, where the Construction Company maintained its general offices and officers and agents upon whom process could be lawfully served, and that by reason of such facts the Court of Hawkins County, Tennessee, did not have jurisdiction of the alleged cause of action or of the defendants, the venue of said cause of action being limited to Roane County, Tennessee.

On July 12, 1945, the plaintiff moved the Court to remand the action to the state court on the ground that the action was not a removable one, that the petitioners for removal failed to give the necessary notice to the adverse party prior to filing the petition and bond for removal, as required by § 72, Title 28, U.S.C.A., and that the jurisdictional amount was not established by the pleadings.

On November 28, 1945, the Court rendered an opinion holding that under the Workmen's Compensation Act of Tennessee the employer may not be sued in a county where he has no officer, agent or place of business by serving process upon the insurer and that he could not be brought into the insurer's venue by counterpart process, that the Chancery Court of Hawkins County was not the proper venue, that removal from that court to the U. S. District Court for the Eastern District of Tennessee did not confer jurisdiction upon the Federal Court, that the question of removability need not be passed upon, and since the District Court had no jurisdiction and in order to avoid the consumption of additional time the action would be dismissed. An order was accordingly entered on December 7, 1945, dismissing the action on the ground "that the Chancery Court of Hawkins County, Tennessee, whence the suit was removed to this court, did not have jurisdiction of the cause of action asserted in the pleading." This appeal followed.

Counsel discussed at some length the question of proper venue under the law of Tennessee and also whether or not sufficient notice was given of the filing of the petition to remove. But from the view which we take of the case, as hereinafter indicated, it becomes unnecessary to rule on those issues.

Plaintiff's recovery, if any, is controlled by the provisions of the Workmen's Compensation Law of Tennessee, as contained in §§ 6851-6901 of the Code of Tennessee. Although these statutory provisions are not pleaded either by the bill or by the petition of removal, yet the District Court and this Court take judicial notice of them. Bowen v. Johnston, 306 U.S. 19, 23, 59 S. Ct. 442, 83 L.Ed. 455; Norfolk & W. Ry. Co. v. Norton Iron Works, 6 Cir., 279 F. 32. They...

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3 cases
  • Flowers v. Aetna Casualty & Surety Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 25 Agosto 1947
    ...amount was not involved. Further details are given in the opinion rendered at that time, reported as Flowers v. Aetna Casualty & Surety Company et al., 6 Cir., 154 F.2d 881. In so disposing of the appeal we did not rule on the appellee's motion to dismiss or consider other grounds relied on......
  • Aetna Casualty Surety Co v. Flowers
    • United States
    • United States Supreme Court
    • 10 Marzo 1947
    ...dismissed the action without reaching the questions raised by respondent's motion for a remand. The judgment was reversed on appeal. 154 F.2d 881. The Circuit Court of Appeals held that the jurisdictional minimum of $3,000 in controversy (Judicial Code § 24, 28 U.S.C. § 41(1), 28 U.S.C.A. §......
  • Strickland v. W. HORACE WILLIAMS COMPANY, 15561.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 19 Abril 1956
    ...a direction to remand for want of jurisdictional amount. It had been held by the District Court and affirmed by the Court of Appeals, 6 Cir., 154 F.2d 881 that since the award payable in installments subject to conditions subsequent the total payments might never reach $3,000, the jurisdict......

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