Geneux v. Texas & Pacific Ry. Co.

• Decision Date: 23 June 1951
• Docket Number: Civ. A. 3245.
• Citation: 98 F. Supp. 405
• Court: U.S. District Court — Western District of Louisiana
• Parties: GENEUX et al. v. TEXAS & PACIFIC RY. CO.

98 F. Supp. 405

GENEUX et al. v. TEXAS & PACIFIC RY. CO.

Civ. A. 3245.

United States District Court W. D. Louisiana, Shreveport D.

June 23, 1951.

Freyer, Goode, Nelson & Freyer, Shreveport, La., for plaintiffs.

Cook, Clark & Egan, Shreveport, La., for defendant.

PORTERIE, District Judge.

In this case¹ the defendant has filed a motion to strike the demand and prayer for jury trial and to transfer the case to the non-jury calendar on the ground that no right to such trial exists under the Constitution and laws of the United States, as to the issues presented.

The Seventh Amendment to our Constitution reads as follows:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." U.S.C.A.Const. Amend. 7. (Emphasis ours).

The Judiciary Act of September 24, 1789, First Congress, Session 1, Chapter 20, 1 Stat. 73, entitled, "An Act to establish the Judicial Courts of the United States", Section 9(d), reads as follows:

"And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury."

Further in the Judiciary Act, Section 12, which the annotator has denominated "Removal of causes from state courts", at the very end thereof, appears the following language:

"* * * And the trial of issues in fact in the circuit courts shall, in all suits, except those of equity, and of admiralty, and maritime jurisdiction, be by jury."

We believe the jurisprudence of the Nation has definitely and repeatedly held that in all civil causes, except those "of admiralty and maritime jurisdiction", trial shall be by jury.

We believe that the language of the Seventh Amendment has been construed from the earliest decisions as recognizing two classes of actions or suits in the United States, as had been recognized at the time of the adoption of the Amendment, to wit: suits at law and suits in equity, the former to be tried by juries and the latter before the court without a jury.

It is true that survival of action under Article 2315 of the Louisiana Civil Code, the part of the Louisiana law which serves as the basis of the instant action, was enacted in 1855, with subsequent amendments which have enabled the various causes of action exemplified in the present complaint, but the jurisprudence of the United States has shown that the words in the Seventh Amendment, "In Suits at common law" did not mean only those suits that existed and were known to the courts in 1789, the time of proposal, or in 1791, the year of adoption, but the words meant a legal concept. That initial concept was contemporaneously expressed by the Congress in the language of the Judiciary Act of 1789: "And the trial of issues in fact * * * in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury." (Emphasis ours). In truth, the Judiciary Act preceded in time the adoption of the Seventh Amendment in 1791.

So, it follows very clearly that an action at law, which unquestionably the instant case is, though given birth as late as in 1855, nonetheless classifies under the legal concept established by the Seventh Amendment and also specifically described in the Judiciary Act of 1789.²

Now as to a review of the jurisprudence:

Justice Gray, in 1898, in the case of Capital Traction Co. v. Hof, 174 U.S. 1, 19 S. Ct. 580, 584, 43 L.Ed. 873, discusses the Seventh Amendment and also the Judiciary Act of 1789, as follows:

"The judiciary act of September 24, 1789, c. 20, drawn by Senator (afterwards Chief Justice) Ellsworth, and passed — within six months after the organization of the government under the constitution, and on the day before the first ten amendments were proposed to the legislatures of the states — by the first congress, in which were many eminent men who had been members of the convention which formed the constitution, has always been considered as a contemporaneous exposition of the highest authority. Cohens v. Virginia (1821) 6 Wheat. 264, 420 5 L.Ed. 257; Parsons v. Bedford 3 Pet. 433, 7 L.Ed. 732, above cited; Bors v. Preston (1884) 111 U.S. 252, 256, 4 S.Ct. 407 28 L.Ed. 419; Ames v. Kansas (1884) 111 U.S. 449, 463, 464, 4 S.Ct. 437, 28 L.Ed. 482; Wisconsin v. Pelican Ins. Co. (1888) 127 U.S. 265, 297, 8 S.Ct. 1370, 32 L.Ed. 239. That act provided, in sections 9 and 12, that the trial of issues of fact in a district or circuit court, in all suits, except those of equity or admiralty jurisdiction, should be by jury; in section 13, that the trial of issues of fact in this court, in the exercise of its original jurisdiction, in all actions at law against citizens of the United States, should be by jury; in section 17, that `all the said courts of the United States' should `have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law'; and in sections 22 and 24, that final judgments of the district court might be reviewed by the circuit court, and final judgments of the circuit court be reviewed by this court, upon writ of error, for errors in law, but not for any error in fact. 1 Stat. 77, 80, 81, 83, 84. Those provisions, so far as regards actions at law, have since remained in force, almost uninterruptedly, and they have been re-enacted in the Revised Statutes, allowing the parties, however, to waive a jury, and have their case tried by the court. Rev.St. §§ 566, 633, 648, 689, 691, 726, 1011."

It will be noted that in the Seventh Amendment the language refers merely to the "common law" and does not add the condition "of England".

It has been established since the case of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1149, 114 A.L.R. 1487, that, "there is no common law of the United States as distinguished from the individual states, a common statement of the rule being that there is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes". 15 C.J.S., Common Law, § 16, page 630.

Our view is that Article 2315 of the Louisiana Civil Code is born of the legal concept of the common law of England. Louisiana applies it as its local law. It is subject, with time, to such alterations as may be provided by its own statutes.

From Volume 16, page 8, Common Law, of the West's Federal Digest, we quote as from the case of The James & Catherine, 2 Fed.Cas. page 410, No. 756, Baldw. 544, as follows:

"The phrase `common law' is used in Const. 7th Amend., U.S.C.A. in contradistinction to equity and admiralty and maritime jurisprudence, and may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights." (Emphasis ours).

Reading the cases of Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732; Root v. Lake Shore and M. S. R. Co., 105 U.S. 189, 26 L.Ed. 975; and, National Labor Relations Bd. v. Jones & Laughlin S. Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L. R. 1352, we come to the following conclusion as to what cases the Seventh Amendment is applicable:

"This provision is `limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law and by the appropriate modes and proceedings of courts of law.' * * * By common law, the framers meant `what the Constitution denominated in the third article "law"; not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit.'" The Constitution of the United States of America (Annotated), Senate Document No. 232 (1938), page 694.

In the case of Low v. United States, 6 Cir., 169 F. 86, 88, we find the following language: "Aside from the fact that this was a criminal and not a civil case, there is no statute which provides for a trial by the court without a jury, except in cases of equity or maritime jurisdiction, or when so provided by the bankrupt law. The trial of issues of fact in the District Court, save in the excepted cases, must be by jury." (Emphasis ours.)

In the case of Hacker v. United States, 5 Cir., 16 F.2d 702, 703, our own, much-regretted Judge Foster said: "It is elementary in federal courts that, in suits at law, the trial must be by jury, unless it is waived by agreement."

In the case of Diederich v. American News Co., 10 Cir., 128 F.2d 144, 145, we find the following language: "This right guaranteed by the Federal Constitution is the right of trial by jury as at common law."

We cull the following language from the case of Baltimore & Carolina Line v. Redman, 295 U.S. 654, 55 S.Ct. 890, 891, 79 L. Ed. 1636: "The aim of the amendment, as this Court has held, is to preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common-law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are to be resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."

The United States Court of Appeals for the Third Circuit, in the case of Smyth Sales v. Petroleum Heat & Power Co., 141 F.2d 41, 44, spoke as follows on the subject:

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