Adams v. Chicago Great Western R. Co.

• Decision Date: 03 February 1914
• Docket Number: 61.
• Citation: 210 F. 362
• Parties: ADAMS et al. v. CHICAGO GREAT WESTERN R. CO. et al.
• Court: U.S. District Court — Northern District of Iowa

210 F. 362

ADAMS et al. v. CHICAGO GREAT WESTERN R. CO. et al.

No. 61.

United States District Court, N.D. Iowa, Eastern Division.

February 3, 1914

This action was commenced in a state court of Iowa by the plaintiffs as copartners, doing business under the name of the Adams Seed Company, against the Chicago Great Western Railroad Company, the Philadelphia & Reading Railway Company and the Wabash Railroad Company, November 10, 1913, to recover from them jointly $1,500 as damages for the alleged loss of certain goods which the plaintiffs say they delivered to the defendants as common carriers to be carried from a point in Iowa to Philadelphia, Pa.; there to be delivered to the plaintiffs. The suit was removed to this court upon separate petitions of the defendants Chicago Great Western Railroad Company and the Wabash Railroad Company, alleging that the 'cause of action sued upon is one arising under the act to regulate commerce. ' The plaintiffs move to remand upon various grounds, one of which is that the cause of action alleged in the petition is not one arising under the 'act to regulate commerce,' or any other law of Congress; that the amount involved is less than $3,000 exclusive of interest and costs; and that this court has no jurisdiction of the controversy.

John McCook, of Cresco, Iowa, for plaintiffs.

Reed &amp Pergler, of Cresco, Iowa, and Carr, Carr & Evans and Miller &amp Wallingford, all of Des Moines, Iowa, for defendants.

REED District Judge (after stating the facts as above).

The plaintiffs in their petition allege, in substance: That in May, 1909, they delivered to the defendants therein named a quantity of wool of the value of $1,500 at McIntire, Iowa, a station on the line of the Chicago Great Western Railroad Company, without any written agreement or bill of lading issued therefor, to be shipped by the defendants from said station to Philadelphia, Pa., there to be delivered to the plaintiffs; that defendants carried said wool to its destination, but failed to deliver the same to the plaintiffs or notify them of its arrival at Philadelphia, and have failed to account to them therefor, and have either appropriated the said wool to their own use, or have delivered the same to some person not authorized to receive the same. Judgment is asked against the defendants for the value of the wool, viz., $1,500, with interest and costs. The defendants Chicago Great Western Railroad Company and the Wabash Railroad Company in due time filed separate petitions to remove the action to this court upon the ground, as alleged therein, that the plaintiffs were, when the suit was commenced, citizens of the state of Iowa, and the defendants corporations of Illinois and Missouri, respectively; and 'that the cause of action alleged by plaintiffs in their petition is one arising under a law regulating commerce, to wit, section 20 of the Interstate Commerce Act as amended by the Act of June 29, 1906.'

The defendant Philadelphia & Reading Company filed a motion in the state court to dismiss the action as to it upon the ground that it had not been served with notice of the action within the state of Iowa, and that it was not doing business in said state, but subsequently withdrew said motion; and it was not ruled upon in the state court. After such withdrawal the state court ordered the removal of the cause to this court upon the petitions of the Chicago Great Western Railroad Company and the Wabash Railroad Company. The Philadelphia & Reading Company did not join in either of said petitions, nor file a separate petition to remove the action and does not appear in this court.

The plaintiffs move to remand upon the grounds, among others:

'That the cause of action alleged in the petition is not one arising under the 'act to regulate commerce,' or any other law of the United States.'

It is settled by numerous decisions of the Supreme Court of the United States that a suit or action cannot be removed from a state court to the United States court upon the ground that it arises under a law of the United States unless such fact appears from the plaintiff's petition; and, if it fails to so appear, the omission cannot be supplied by the petition for removal, or in any subsequent pleading in the case. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 Sup.Ct. 654, 38 L.Ed. 511, and subsequent cases.

It may not be necessary to refer in the petition to any particular law of the United States under which the cause of action is claimed to arise, for the court takes notice of the laws of the United States; but it is necessary to allege facts, and not mere conclusions, by which the court may know from the facts alleged that the cause of action is one that arises under some law of the United States. There is nothing in the plaintiff's petition in this case that indicates even remotely that the cause of action there alleged arises under the 'act to regulate commerce' or under the Constitution, or any law or treaty of the United States; nor does it appear that the wool which it claims to have delivered to the railroad companies at McIntire, Iowa, to be carried to Philadelphia, was lost in transit, for it is alleged that the wool was carried to its destination by the defendants, that they failed to deliver the same to the plaintiffs after its arrival there, failed to notify them of such arrival, and that they have either appropriated the same to their own use, or delivered it to some one not authorized to receive it. The cause of action therefore, as alleged by the plaintiffs, cannot rightly be held to be one arising under the 'act to regulate commerce' or any other law of the United States.

But if it did appear from the plaintiff's petition that the wool was delivered by them to the Chicago Great Western Railroad Company at McIntire, Iowa, to be carried in interstate commerce to its destination in Pennsylvania, a point beyond its own line through connecting carriers as its agents, and was lost or damaged in transit either upon its own line or that of the connecting carriers, such loss or injury could not be attributed to any violation of the act to regulate commerce; and an action to recover for such loss would not therefore be one arising under that act as...