FARMERS'BANK & TRUST CO. v. Atchison, T. & SF Ry. Co.

• Decision Date: 17 March 1928
• Docket Number: No. 7928.,7928.
• Citation: 25 F.2d 23
• Parties: FARMERS' BANK & TRUST CO. OF HARDINSBURG, KY., v. ATCHISON, T. & S. F. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

25 F.2d 23 (1928)

FARMERS' BANK & TRUST CO. OF HARDINSBURG, KY., v. ATCHISON, T. & S. F. RY. CO.

No. 7928.

Circuit Court of Appeals, Eighth Circuit.

March 17, 1928.

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C. A. Randolph, of Kansas City, Mo., for plaintiff in error.

George J. Mersereau, of Kansas City, Mo. (Cyrus Crane, John H. Lathrop, Winston H. Woodson, Richard S. Righter, and George O. Pratt, all of Kansas City, Mo., on the brief), for defendant in error.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and JOHN B. SANBORN, District Judge.

KENYON, Circuit Judge.

Plaintiff in error, a corporation organized under the laws of Kentucky, and acting under the authority thereof, as administrator of the estate of J. M. Crume, deceased, brought action in the circuit court of Jackson county, Mo., against defendant in error, the Atchison, Topeka & Santa Fé Railway Company, a citizen of the state of Kansas, to recover damages for the death of said Crume, the petition alleging that he was killed at or near Castle Rock, Colo., by negligence upon the part of defendant in error while he was employed in interstate commerce. The action was on behalf of Crume's surviving widow and three minor children.

For convenience, plaintiff in error will be designated as plaintiff, defendant in error as defendant, and Crume as deceased.

Defendant filed a petition for removal of the cause to the federal court, alleging that the statements in the complaint filed with relation to Crume being at the time of his injury and death engaged in interstate commerce were false, and that the same were made with the fraudulent purpose of preventing removal of the cause to the federal court. The state court denied the petition for removal. Defendant, however, lodged a transcript of said cause in the District Court of the United States for the Western District of Missouri. Plaintiff thereupon filed a motion to remand the case to the state court, denying any fraud, urging that the federal court was without jurisdiction, and reiterated the claim of its original complaint that decedent was engaged in interstate commerce at the time of his injury and death. The court, in passing on the question, took into consideration, not only the allegations of the complaint, the petition to remove, and the motion to remand, but also certain depositions that had been taken by plaintiff's counsel.

Plaintiff, while asserting that it did not invoke any decision of the court on the question of decedent being engaged in interstate commerce, referred the court to the depositions taken by it, and presented a digest of a part thereof which it claimed supported allegations of its petition concerning interstate commerce. Plaintiff's counsel stated also it was expected to have other evidence on the same question to submit when the case was tried on its merits.

The court denied the motion to remand, and held that decedent was not employed in interstate commerce at the time of his injury and death; that he was aiding in unloading supplies which might be used in interstate commerce, but which were not then so employed, and held the burden was upon plaintiff to show that he was entitled to the benefit of the act commonly known as the Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665), and that the testimony was practically conclusive that the carrier's train was exclusively engaged in intrastate commerce.

The action was based on the Federal Employers' Liability Act (35 Stat. L. p. 65, c. 149), which provides that every common carrier by railroad while engaged in commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee, if such injury or death results in whole or in part from the negligence of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, etc. The act provides that the contributory negligence of the employee shall not be a bar to recovery, but that damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee, and also provides that employment risks are not assumed where the violation by the carrier of any statute enacted for the safety of employees has contributed to the injury.

In 1910, section 6 of said act was amended to read in part as follows: "The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States." 36 Stat. L. p. 291, c. 143 (45 USCA § 56; Comp. St. § 8662).

Congress evidently intended by this amendment that a plaintiff should have an election as to where a case arising under the act should be brought, and, if brought in a state court of competent jurisdiction, that it should not be removed to any court of the United States. If this case was one therefore arising under the act hereinbefore referred to the state court had jurisdiction. The entire theory of removal in this case is that the allegations of the petition that deceased was engaged in interstate commerce at the time of his injury and death were false and fraudulent, that it must have been so known to plaintiff at the time action was commenced, and that the attempt to thus plead a case under the Employers' Liability Act amounted to a fraud on the jurisdiction of the federal court.

The petition filed by plaintiff in the state court alleged that deceased and defendant were both engaged in interstate commerce; that Crume's death was caused by a collision between defendant's train on which he was working with another of defendant's trains, and in part is as follows:

"Plaintiff further states that on or about the 30th day of June, 1924, the said J. M. Crume was in the employ of the defendant as a car supply helper, in a certain car loaded with supplies; that he was assisting and facilitating the movement and transportation of said supplies through and between the states of Colorado and New Mexico, and filling requisitions, disbursing and unloading said supplies at various of defendant's stations along its line in the states of Colorado and New Mexico for the immediate use of the defendant in its commerce between the several states; that said car of supplies was a part of a train operated by the defendant carrying freight and goods between the states of Colorado and New Mexico and other states of the United States; that said train could not proceed on its interstate journey, carrying its cargo of goods destined to other states, until defendant's stations along the line were furnished by said supply car with the supplies necessary for the immediate use of the defendant in carrying on its aforesaid commerce between the several states; that plaintiff's interstate duties were to fill orders and requisitions for such supplies and unload and disburse the same at the various stations along defendant's line as said train proceeded on its interstate journey as aforesaid, and that said train could not proceed on its journey until said orders and requisitions for such supplies were filled, disbursed, and unloaded at the stations as aforesaid; that, at the time of the injuries and death of the said J. M. Crume on said day, he was filling orders and requisitions of said supplies and unloading and disbursing the same in the manner and for the purposes aforesaid, and thereby engaged in, and assisting the defendant in carrying on its business of interstate commerce by railroad."

The petition for removal set out the various allegations of plaintiff's petition relative to the claimed interstate commerce, and stated that such allegations were not true either in law or fact, and then proceeded to set forth facts which it claimed showed that decedent was not engaged in interstate commerce, viz. that at the time in question he was assisting in furnishing supplies such as stationery, tools, oil, and other articles from a supply car to stations and other places of deposit, not for immediate use in the conduct of the railroad's business; that the supplies were being moved from point to point on petitioner's line, not for immediate use, but for the purpose of replenishing supplies and materials at the local stations of petitioner; that said decedent had nothing to do with the movement and transportation of said supplies, and that all the connection he had with it was accepting and filling orders on requisitions furnished to him; that whether the supplies would be used in interstate or intrastate commerce could not be determined at the time of furnishing them, and that decedent was not engaged in interstate commerce, nor in any work so closely connected therewith as to bring him within the Federal Employers' Liability Act or Acts and their amendments, and that the allegations of plaintiff's petition as to decedent's employment in interstate commerce were untrue, and were made for the fraudulent purpose of defeating the right of removal to the federal court.

The motion to remand reiterated the statements of the original complaint, and again set forth the work in which decedent was engaged, and claimed that it was so closely related to interstate commerce as to be practically a part thereof, and denied any fraudulent purpose in the matter. Both the petition for removal and the motion to remand were verified.

The court did not determine the question upon the pleadings, but considered a number of depositions that had been taken by plaintiff's attorney, to which procedure plaintiff's attorney, while insisting that the court had no right to determine the question of interstate commerce because it was practically determining the merits of the case,...