Taylor v. Southern Ry. Co.

• Citation: 182 N.E. 805,350 Ill. 139
• Decision Date: 22 October 1932
• Docket Number: No. 20748.,20748.
• Parties: TAYLOR v. SOUTHERN RY. CO.
• Court: Supreme Court of Illinois

350 Ill. 139

182 N.E. 805

TAYLOR

v.SOUTHERN RY. CO.

No. 20748.

Supreme Court of Illinois.

Oct. 22, 1932.

Error to Third Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Harry W. McEwen, Judge.

Suit by S. Arthur Taylor against the Southern Railway Company. Judgment for plaintiff was affirmed by the Appellate Court (259 Ill. App. 271), and defendant brings certiorari.

Reversed and remanded, with directions.

DE YOUNG, J., dissenting.

Kramer, Kramer & Campbell and R. E. Costello, all of East St. Louis, and Pomeroy & Martin, of Chicago, for plaintiff in error.

Royal W. Irwin, of Chicago, for defendant in error.

PER CURIAM.

The defendant in error, S. Arthur Taylor, began suit in the circuit court of Cook county against the plaintiff in error, the Southern Railway Company, to recover damages under the Federal Employers' Liability Act (45 USCA §§ 51-59) for the loss of his left foot. A jury returned a verdict in favor of the defendant in error, judgment was entered upon the verdict, the judgment was affirmed by the Appellate Court for the First District, and the case is brought to this court upon a writ of certiorari.

The plaintiff in error filed to the declaration the general issue and two special pleas. The first special plea alleges that the defendant in error was a resident of Indiana; that the plaintiff in error is a railroad corporation organized under the laws of Virginia, with its principal office at Richmond, Va.; that said railroad extends across Indiana, including Warrick county, where the defendant in error resided and where the injury occurred; that the railroad also runs across Wabash, Edwards, Wayne, Jefferson, Marion, Clinton, and St. Clair counties, in Illinois; that the plaintiff in error never at any time owned, operated, or controlled any railroad within 250 miles of Chicago, Cook county, Ill.; that the major portion of its business over its railroad in Illinois and Indiana is interstate commerce; that all of its witnesses reside in or near Warrick county, Ind., which is approximately 300 miles from Chicago; that said witnesses are employees of the railroad, and their constant attendance at their work is necessary in order to properly carry on the interstate business of the railroad; that it would be necessary in taking said witnesses to Chicago to transport them over lines of other railroads and keep them away from their employment for the three or four days of the trial, in addition to whatever delay might be occasioned by the case not being reached for trial upon the day it was set, and that the trial of the case in Chicago would be an unreasonable burden upon interstate commerce, in violation of the Constitution of the United States and contrary to the law as laid down in the decisions of the Supreme Court of the United States with reference to placing an unreasonable burden upon interstate commerce.

The second special plea contained the same allegations as the first special plea, and also alleges that the cause of action purports to have been brought under the Federal Employers' Liability Act, one section of which (USCA, title 45, § 56) provides, in part, as follows: ‘Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States, and no case arising under this chapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States.’ The plea alleged that the defendant in error resides in the district of Indiana; that said railroad has its principal office in the Eastern district of Virginia;that Cook county, Ill., is in the Northern district of Illinois; that the plaintiff in error does not operate, and never has operated, any of its lines of railroad in the Northern district of Illinois, and is not doing business in said district; that the plaintiff in error at the time of the commencement of this suit maintained an office in Chicago in charge of J. P. Tocher, upon whom the alleged service of process was had by leaving a copy with him as the agent of the railroad company; that Tocher was not an agent of the railroad company, and neither he nor any other person in the office in Chicago had any authority to enter into any contract or do anything on behalf of the company except to solicit freight for movement over such routes as would include a movement over its lines, quote rates thereon, and give information as to schedules and movement of trains, and that this was true at all times; that no business of the plaintiff in error is done at any place in the Northern district of Illinois except as aforesaid; and that the only line of railroad of the company owned or operated in Illinois, and its only officers or agents in Illinois, are located in the Eastern district of Illinois.

[3] A general demurrer to each of these two special pleas was sustained, and the first question to be ascertained is whether this action of the court was in accordance with the law of this state. It is insisted by the plaintiff in error that the facts alleged in these pleas were sufficient, if true, to deprive the circuit court of Cook county of jurisdiction upon the ground that the plaintiff in error could not properly be sued, under the laws of this state, in Cook county, and that to permit the trial of the cause in Cook county would be a burden upon interstate commerce. Each of these pleas purported to be in bar of the whole action, and such pleas, to be good upon demurrer, must each be sufficient in itself without aid of any statements contained in the other. West Chicago Street Railroad Co. v. Morrison, Adams & Allen Co., 160 Ill. 288, 43 N. E. 393. A demurrer involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of the pleadings which arise on the face thereof. Wood v. Papendick, 268 Ill. 383, 109 N. E. 266. In considering such questions, the averments of the pleas must be construed most strongly against the pleader. Kelleher v. Chicago City Railway Co., 256 Ill. 454, 100 N. E. 145;People v. Lanham, 189 Ill. 326, 59 N. E. 610. Where a plea is filed which goes to the jurisdiction of a circuit court in this state, it must be certain to every intent, and there must be proper averments of facts, accurately and logically stated, excluding every intendment of jurisdiction. The presumption will be in favor of the jurisdiction, and the pleader must set up such facts as will clearly oust the court of jurisdiction. Willard v. Zehr, 215 Ill. 148, 74 N. E. 107;Diblee v. Davison, 25 Ill. 403. Each plea forms a distinct issue (Farnan v. Childs, 66 Ill. 544), and upon demurrer it must be tested by the ultimate facts stated therein, independent of the facts stated in any other plea which may be filed in the case.

The Federal Employers' Liability Act provides that a suit thereunder may be brought in the District Court of the United States in the District where the defendant resides or in which the cause of action arose or in which the defendant is doing business at the time of the commencement of the suit. The jurisdiction of the courts of the United States is concurrent with that of the courts of the several states, and no case brought in a state court of competent jurisdiction can be removed to any court of the United States. This cause of action did not arise in Cook county or in the state of Illinois, and the plaintiff in error did not reside in Cook county at the time the suit was begun. Cook county is within the jurisdiction of the United States District Court for the Northern District of Illinois, and the railroad of the plaintiff in error is within the jurisdiction of Illinois. Under the federal statute, and the facts as alleged in the pleas the only ground upon which the District Court of the United States for the Northern District of Illinois could have jurisdiction of this cause of action would be that the plaintiff in error was doing business in that district at the time the suit was commenced. Section 6 of chapter 110 of our statutes (Smith-Hurd Rev. Stat. 1931, p. 2192) provides that action against a railroad company may be brought in the county where its principal office is located or in the county where the cause of action arose or in the county into or through which its road runs. The principal office of...