Alabama Great Southern Ry. Co. v. American Cotton Oil Co.

• Citation: 229 F. 11
• Decision Date: 10 January 1916
• Docket Number: 2786.
• Parties: ALABAMA GREAT SOUTHERN RY. CO. et al. v. AMERICAN COTTON OIL CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

229 F. 11

ALABAMA GREAT SOUTHERN RY. CO. et al. v. AMERICAN COTTON OIL CO.

No. 2786.

United States Court of Appeals, Fifth Circuit.

January 10, 1916

Rehearing Denied February 1, 1916.

From the record before the court it appears that the American Cotton Oil Company, appellee, a corporation and citizen of the state of Ohio, brought its declaration in the circuit court of Warren county, Miss., against the appellants. They are the Alabama Great Southern Railway Company, a corporation and citizen of Alabama, and the Alabama & Vicksburg Railway Company, a corporation and citizen of Mississippi. For convenience, these will be termed the Alabama and Mississippi Railways. These railways are engaged in interstate commerce and transportation. In this capacity, at Vicksburg, the Mississippi Railway, on March 25, 1914, received a tank car of cotton seed oil. This oil was intended for the American Cotton Oil Company at Vicksburg, the Ohio. The Mississippi Railway was the initial carrier, and the bill of lading indicated that the car was to be delivered at Meridian to the Alabama Railway, which was to transport it to Chattanooga and deliver it to the Queen & Crescent Line, by which it was to be conveyed to Cincinnati.

The declaration in the state court alleged that this was an 'interstate shipment, without exception,' and that this was made plain by the bill of lading. This had attached a draft of the Colwell Oil Company in favor of the First National Bank of Vicksburg, Miss., for $3,538.08, drawn on the American Cotton Oil Company at Cincinnati, Ohio. The draft was paid. It was further alleged in the declaration that the car containing the oil was moved out of Vicksburg and delivered by the Mississippi Railway to the Alabama Railway at Meridian, in good condition and without exception and, further, that after the car was thus received by the Alabama Railway it moved from Meridian, en route to Cincinnati, over the lines of the Alabama Railway, but never reached its point of destination, and the oil in question was lost or wasted en route and never delivered. An amicable demand was made upon these railways for payment of the value of the oil, but this was refused. The Colwell Cotton Oil Company then assigned to the American Cotton Oil Company all its right, title, and interest to the oil, and to its complaint against the railways for their failure to deliver the same according to the contract. They refusing and continuing to refuse payment, the declaration setting forth the Oil Company's cause of action was filed.

Having been served with process on January 9, 1915, the railways filed a plea of general issue, and on the 16th of January the same year, the railways notified the attorneys of record for the Oil Company that they would, on the day to which the process was made returnable, move the state court for an order removing the case to the District Court of the United States for the Western Division of the Southern District of Mississippi. This motion was made, and its technical requisites were complied with. The motion came on for a hearing before the state court, to wit, the circuit court of Warren county, Miss., which adjudged that the cause was not removable. To this ruling the railways excepted, and then caused a certified copy of the declaration, and exhibits, notice of motion to remove, petitions, and bonds, and the order of the state court, and all the proceedings taken therein, to be filed in the District Court of the United States. This was done on the 13th day of February, 1915, and in that court the railways again filed their plea of general issue. It further appears that, notwithstanding the action of the railways in filing a transcript of the record in the District Court of the United States and further complying with the requisites of the statute providing for removal of causes from the state court thereto, the plaintiff, namely, the American Cotton Oil Company, insisted upon proceeding with the trial in the state court. Pursuant to this, that court, by order, required the railways to plead on or before the 3d day of May, 1915.

In this state of the record, the railways brought in the District Court of the United States, in which the transcript had been filed, a bill in equity against the American Cotton Oil Company. The bill recited the facts hereinbefore stated, and set out the act of Congress of June 29, 1906, amendatory of the Interstate Commerce Act, and termed the Carmack Amendment. This amendment provides: 'That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed. Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof. ' The bill further averred that the action was instituted by virtue of the act of Congress thus amended; that the declaration in the state court alleges that the Mississippi Railway was the initial carrier; that the oil was received as an interstate shipment, and that it was delivered to the Alabama Railway at Meridian, Miss.; that the latter operates a railroad line from Meridian, through the state of Alabama, to Chattanooga, in Tennessee; that the oil was consigned to Cincinnati, Ohio, and that it was not possible for either of the complainants to transport the oil to its destination without the assistance of connecting lines. Because of these facts, it was the purpose of the Oil Company to enforce the provisions of the Carmack Amendment in the state court; that indeed the Alabama Railway had no domicile in the county of Warren and could not have been sued separately therein, but could be so sued in connection with the initial carrier only because of the Carmack Amendment.

Averring that the District Court of the United States had original jurisdiction of all such suits of a civil nature, at common law, or in, equity, which arise under the Constitution or laws of the United States, or statutes made or which shall be made under their authority, and further that because of such original jurisdiction such suits when brought in the state court may be removed by the defendant or defendants therein to the District Court of the United States for the proper district, the complainants further averred that this is a suit of that character, and that they had the right to have the same removed from the circuit court of Warren county, Miss., to the District Court having jurisdiction. Averring that the notice of petition to remove, together with copies of the petitions and bonds, were made and filed in time, they further aver that the state court where the declaration was filed, in view of the record thus made, had no right or authority to retain jurisdiction, that its order declining to remove the cause was illegal, and that the cause had been legally and properly removed to the United States court, and is now pending therein. Invoking the assistance of the District Court to prevent the American Cotton Oil Company from harassing the complainants by attempting to proceed with the suit in the state court, they pray for a writ of injunction directed to the Oil Company and its attorneys enjoining and commanding them absolutely to refrain from attempting to further proceed with the suit in the circuit court of Warren county, and requiring them to prosecute the same in the Western division of the Southern district of Mississippi. Calling attention to the fact that the order of the state court required complainants to plead on or before the 3d day of May, 1915, that being the first Monday of the month of May, and that the District Court of the United States to which the cause was removed could not finally dispose of the controversy prior to that time, they ask for a temporary restraining order against the Oil Company and its counsel from further prosecution of the suit in the state court pending the hearing of the questions presented by the bill.

When the bill in equity came on to be heard before the District Court of the United States, the counsel for the Oil Company moved to dismiss the same for the assigned reasons that there is no equity in the bill; that it presents no ground for the granting of an injunction, no federal question for the determination of a federal court, and no facts which would authorize the removal of the suit pending in the state court to the federal court; that the alleged grounds for removal are shown not to exist as a matter of law on the face of the pleadings of the defendant, the plaintiff in the suit pending in the state court; and because the federal court for the Western division of the Southern district of Mississippi is without jurisdiction, because the questions related as constituting a federal question have been decided and settled by the Supreme Court of the United States, and therefore no federal...