Law v. Western Ry. of Alabama

• Decision Date: 01 December 1898
• Citation: 91 F. 817
• Parties: LAW v. WESTERN RY. OF ALABAMA.
• Court: U.S. District Court — Northern District of Georgia

91 F. 817

LAW v. WESTERN RY. OF ALABAMA.

United States Circuit Court, N.D. Georgia, Western Division.

December, 1898

Hoke Smith and H. C. Peeples, for plaintiff.

Dorsey Brewster & Howell and George P. Harrison, for defendant.

NEWMAN District Judge.

On April 4, 1898, Mrs. Marian M. Law, as executrix of Henry M Law, deceased, brought suit against the Western Railway of Alabama, in the superior court of Troup county, to recover damages caused by the death of her husband in an accident on said railroad, he being a conductor in the employ of, and his death having been caused by the negligence of, the defendant corporation. On the 27th day of September, 1898, the case was removed by the defendant to the United States circuit court for the Western division of the Northern district of Georgia. At the time of the removal, a plea to the jurisdiction had been filed, which has been amended in this court, and, as amended, is as follows:

'That the Western Railway of Alabama, defendant in this suit, is an Alabama corporation, with its principal office at the city of Montgomery, in Montgomery county, Ala. That it owns and operates a railroad from Selma, Ala., to West Point, Ga. That all of said line of railroad, with exception of a few hundred yards thereof, is situated in the state of Alabama. That the said few hundred yards which is not in the state of Alabama extends from the Georgia and Alabama state line, near West Point, Ga., to the depot of the Atlanta & West Point Railroad, a Georgia corporation, and there connected with the line or railway belonging to said company in the state of Georgia. That the defendant corporation, the Western Railway of Alabama, is incorporated under the general laws of the state of Alabama, and is not incorporated under the laws of Georgia or any other state. That it (the Western Railway of Alabama) was organized on the 15th day of March, 1883, by the Georgia Railroad & Banking Company and the Central Railroad &amp Banking Company of Georgia, two Georgia corporations, which on the 19th day of April, 1875, purchased all of that part of defendant's railway which is situated in Alabama, to wit from Selma, Ala., to West Point, Ga., at a sale made in pursuance of a decree rendered by the chancery court for the Second district, in the Southern division of Alabama, in a cause pending in said court wherein Josiah Morris and R. J. Lowry, trustees, were complainants, and the Western Railway of Alabama and others were defendants. That, in pursuance of said purchase, Vinson M. Elmore, register in chancery of said court, executed and delivered to the said purchasers a certain deed of conveyance, a copy of which is hereto attached, marked 'Exhibit A,' and made a part of this plea. That on the first Tuesday in October, 1876, the said Georgia Railroad & Banking Company and the Central Railroad & Banking Company of Georgia bought the remainder of its said line of railway, to wit, that portion of a few hundred yards in length which lies in Troup county, in the state of Georgia, and connecting that part of its line lying in alabama with the Atlanta & West Point Railroad Company, at a sheriff's sale made by virtue of a writ of fieri facias issued from the superior court of Troup county, Ga., in favor of Jesse Boring, against the Montgomery & West Point Railroad Company, and on said date went into possession of the same by virtue of a deed from W. G. S. Martin, sheriff of Troup county, Ga., executed on the 3d day of October, 1876, a copy of which is hereto attached, marked 'Exhibit B,' and made part of this plea. That, prior to the aforesaid purchases, the said Georgia Railroad & Banking Company and the Central Railroad & Banking Company of Georgia obtained an enabling act from the legislature of the state of Georgia, entitled 'An act to authorize and provide for the purchase of the Western Railroad of Alabama and its property and franchises by the Georgia Railroad & Banking Company and the Central Railroad & Banking Company of Georgia, or by either of them, and to authorize said companies to issue bonds in certain cases, and to authorize connecting lines to aid in said purchase, and to issue bonds therefor and for other purposes,' approved February 27, 1875, a copy of which is hereto attached, marked 'Exhibit BB,' and made a part of this plea. That from and after the purchases of said line of railway, as above set forth, the said Georgia Railroad & Banking Company and the Central Railroad & Banking Company of Georgia, as said purchasers, operated said line of railway until the incorporation of the Western Railway of Alabama, as above set forth, when, to wit, on the 28th day of March, 1883, the said two Georgia companies executed to the Western Railway of Alabama a deed of conveyance to the entire line of railway extending from Selma, Ala., to and into West Point, Ga., as hereinabove set forth, and including a few hundred yards of the same lying in Troup county, Ga., as shown by the two copies of deed executed by the said two companies, hereto attached, marked, respectively, Exhibits 'C-- 1' and 'C-- 2,' which are made a part of this plea. That the injury complained of to plaintiff's testator was suffered in Macon county, in the state of Alabama. That, at the time of said injury, plaintiff's testator was a conductor in charge of a train of cars on the defendant's road, which he was operating under a contract of employment with the defendant made in Alabama. That, at the said time and place, defendant was doing business under its said charter in the state of Alabama. That the summons and petition in the cause was never served on the president or any managing agent of the defendant, but upon a joint depot agent of the defendant company and the Atlanta & West Point Railroad Company, who had no charge or control whatsoever, either of the train on which plaintiff's testator was riding, or of the track over which the said train was passing, at the time the said injury occurred; and that from the time of the commencement of this suit, continuously up to and including the present time, the defendant has operated that part of its line lying in the state of Georgia solely under its purchase from the Georgia Railroad & Banking Company, and the Central Railroad & Banking Company of Georgia, as shown by copies of their deeds hereto attached, marked Exhibits 'C-- 1' and C-- 2,' and under the authority of the act of the Georgia legislature hereinabove referred to, and hereto attached, and marked 'Exhibit BB.' That the plaintiff's right of action, if she has any, does not exist at common law, but is based upon an Alabama statute, which is not similar to the statute of the state of Georgia upon the same subject; and that there now are, and for all the time aforesaid have been, justices in Macon county, Ala., and in Montgomery county, Ala., and that all the singular pleas for the recovery of damages sustained by employes, based upon the negligence of an employer, within the said county, have been, for all the time aforesaid, and still are, pleaded and pleadable within the said county of Macon, or in the county of Montgomery, in the state...