Jenkins v. Pullman Co.

• Citation: 96 F.2d 405
• Decision Date: 19 April 1938
• Docket Number: No. 8558.,8558.
• Parties: JENKINS et al. v. PULLMAN CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

96 F.2d 405 (1938)

JENKINS et al. v. PULLMAN CO. et al.

No. 8558.

Circuit Court of Appeals, Ninth Circuit.

April 19, 1938.

L. H. Phillips, Chas. R. Thompson, and Henry N. Cowan, all of Los Angeles, Cal., for appellant.

Robert Brennan, M. W. Reed, Leo E. Sievert, and H. K. Lockwood, all of Los Angeles, Cal., for appellee Pullman Co.

Robert Brennan and M. W. Reed, both of Los Angeles, Cal., for appellees H. J. Hatch and Edward E. Myers.

Livingston & Livingston, of San Francisco, Cal. (Leonard J. Bloom, of San Francisco, Cal., of counsel), for appellee A. J. Kash.

Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

Two procedural questions and one substantive question are submitted to us, the former involving removability of an action commenced in a state court, and the latter involving the effect of an instrument signed by appellant, after commencement of the action, as to whether or not it extinguished the entire action.

Southern Pacific Company, hereinafter called the railroad, is a Kentucky Corporation. Robert L. Jenkins, a resident of California, was employed by it as a passenger conductor. Fred M. Dolsen, a resident of California, was employed by it as a gate tender at its passenger station in the city of Los Angeles, to examine tickets of passengers, before their entry through the gates to board trains.

The Pullman Company, hereinafter called the company, is an Illinois corporation. H. J. Hatch, a resident of California, was employed by it as a Pullman conductor. Edward E. Myers, whose place of residence does not appear, was employed by it as a Pullman porter.

The railroad hauls the company's sleeping cars and equipment under an agreement between them. Under rules of the railroad, its conductor or other officer in charge shall eject disorderly passengers from its trains, and is permitted to call to his assistance city, county, or California State peace officers. Likewise, employees of the railroad are instructed to preserve order in and about its stations.

On March 29, 1935, the railroad ordered Robert L. Jenkins to take charge, as conductor, of its train, leaving Los Angeles destined for San Francisco. About 8 o'clock in the evening of that day, the railroad's gate tender, Fred M. Dolsen, permitted one A. J. Kash to pass through its gates in order to board the train, without displaying a ticket. Kash at that time was intoxicated, loud, boisterous, disorderly, and was using profane and indecent language. The Pullman conductor and the Pullman porter permitted Kash to board the train, and he continued his objectionable and annoying conduct. Efforts of the Pullman conductor to induce Kash to desist from his disorderly conduct failed. The Pullman conductor thereupon called Jenkins to assist him. Remonstrances of Jenkins had no effect. Jenkins called police officers of the city of Ventura to assist in ejecting Kash from the train at that place. The police officers arrested Kash, and, as they were taking him from the train, Kash struck and injured Jenkins.

Jenkins died as a result of the injuries caused by the blow, on April 19, 1935. His wife, Garnett V. Jenkins, and his minor son, Robert W. Jenkins, survived him. On September 27, 1935, Garnett V. Jenkins was appointed guardian ad litem for Robert W. Jenkins, and individually, and as such guardian ad litem, brought an action against the railroad, its gate tender, the company, its conductor, its porter, and Kash to recover for the death of Jenkins, in a California state court.

The complaint contained two causes of action, the first being brought against and grounded on the negligence of all defendants, and the second being brought against Kash only, and charged him with assault and battery. Recovery of $50,000 on each cause of action was prayed for. The first cause of action failed to allege that Jenkins was engaged in work, or performing services, which were a part of interstate commerce at the time of his injury, and failed to allege negligence of the Pullman conductor.

On November 20, 1935, the company filed in the state court a petition to remove the cause to the court below.

On November 25, 1935, Garnett V. Jenkins individually, and as guardian ad litem for Robert W. Jenkins, filed an amended complaint in the state court,¹ containing two causes of action, being the same as those contained in the original complaint. The amended complaint alleged, in the first cause of action, the same facts as were contained in the first cause of the original complaint, but failed to allege negligence of the Pullman conductor. There was an allegation in the first cause of action of the amended complaint that the action was brought, as against the railroad, under the Federal Employers' Liability Act, as amended, 45 U.S.C.A. §§ 51-59.

On the same day, November 25, 1935, an order of removal was made by the state court. On December 10, 1935, in a probate proceeding in the state court, Garnett V. Jenkins was appointed administratrix of the estate of Jenkins, deceased, and on December 27, 1935, the court below made an order substituting Garnett V. Jenkins, as such administratrix (hereinafter called appellant), as plaintiff, for Garnett V. Jenkins, individually and as guardian ad litem, pursuant to a stipulation.

On January 17, 1936, the Pullman conductor filed in the court below a demurrer. On January 22, 1936, appellant filed a motion to remand the cause to the state court.

The demurrer filed by the Pullman conductor was sustained on January 29, 1936. Appellant filed a second amended complaint on February 8, 1936. It contained the same two causes of action, the only essential difference being that the first cause of action of the second amended complaint alleged that at the time of his injury Jenkins was performing services which were a part of interstate commerce, and that the Pullman conductor was negligent. It was unlike the first causes of action in the original and amended complaints in those respects.

The motion to remand was denied by the court below on February 19, 1936. On December 7, 1936, appellant filed in the court below an instrument entitled "Waiver Of Jury."

On December 21, 1935, Garnett V. Jenkins, individually, and as guardian ad litem, executed and acknowledged a document entitled a "Covenant Not To Sue." In consideration of the sum of $2,500, those parties by that document covenanted with the railroad that they would "forever * * * refrain from instituting, pressing or in any way aiding any claim * * * or cause of action for damages * * * on account of * * * the injury or death of Robert L. Jenkins, deceased * * * which cause or causes are mentioned in that certain action entitled In the District Court of the United States, Southern District of California, Central Division, Mrs. Garnett V. Jenkins and Robert W. Jenkins, by Mrs. Garnett V. Jenkins, his guardian ad litem, plaintiff, vs. Southern Pacific Company, a corporation, et al. * * *"

Another provision was that "Mrs. Garnett V. Jenkins and Robert W. Jenkins, by Mrs. Garnett V. Jenkins, his guardian ad litem, and the Southern Pacific Company, a corporation, do not in any manner or respect waive or relinquish any claim or claims against any other person, persons, firms or corporations than are herein specifically named * * *"

On December 23, 1936, appellant filed a petition in the state court probate proceedings stating that she, as administratrix, had filed an action predicated upon an injury to the deceased, and that such action had been removed to the court below; and that she, as administratrix, had entered into a "Covenant Not To Sue" with the railroad, a copy of which was attached. She prayed for "an order confirming said Covenant Not to Sue and permitting the petitioner to dismiss said cause as against the Southern Pacific Company." On the same day the state court ordered "that the Covenant Not to Sue entered into by and between Mrs. Garnett V. Jenkins, Administratrix, and the Southern Pacific Company, a corporation, be and is hereby confirmed and that she be permitted to dismiss said cause of action as against Southern Pacific Company, a corporation."

On the following day, the court below dismissed the action as against the railroad and the gate tender.

On December 29, 1936, the company, the Pullman conductor, the Pullman porter,² and Kash, all filed supplemental answers that the "Covenant Not to Sue" released³ the cause of action stated against them. The answers were treated as pleas in bar, and trial was had thereon on the same day. The court below held that the instrument "amounted to a release of the cause of action as to all of the defendants." See Jenkins v. Southern Pac. Co., D.C., 17 F.Supp. 820. Findings and judgment of dismissal followed on January 22, 1937. Appellant appealed from the judgment.

Notwithstanding the fact that appellant had been substituted as plaintiff, the record here does not disclose that any of the parties noted or observed such substitution in either the captions or allegations of pleadings or other documents filed. The judgment for costs was against, and the appeal was taken by, Garnett V. Jenkins, individually, and as guardian ad litem. At the argument appellees asked for, and were granted, ten days within which to file a motion to dismiss, on the ground that the appeal was not taken by the proper party. Within the ten-day period, they declined to so move. Had the motion been made, it would have been denied. Appellant has the right to amend. Missouri, Kan. & Tex. Ry. Co. v. Wulf, 226 U.S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas.1914B, 134. In 49 C.J. 130, § 135, it is said: "* * * While a caption or title may be considered a proper formal part of a declaration, complaint, or petition, it has been said that, strictly speaking, a caption is no part thereof, except where by express reference thereto in the pleading itself it is made a part thereof; and accordingly it has generally been held that a defective...