American Car Foundry Company v. Agnes Kettelhake

• Citation: 236 U.S. 311,35 S.Ct. 355,59 L.Ed. 594
• Decision Date: 23 February 1915
• Docket Number: No. 138,138
• Parties: AMERICAN CAR & FOUNDRY COMPANY, Plff. in Err., v. AGNES KETTELHAKE
• Court: United States Supreme Court

236 U.S. 311

35 S.Ct. 355

59 L.Ed. 594

AMERICAN CAR & FOUNDRY COMPANY, Plff. in Err.,

v AGNES KETTELHAKE.

No. 138.

Argued January 20, 1915.

Decided February 23, 1915.

Messrs. William R. Gentry, M. F. Watts, and Edwin W. Lee for plaintiff in error.

Mr. George Safford for defendant in error.

Mr. Justice Day delivered the opinion of the court:

Agnes Kettelhake was the widow of one Frank Kettelhake, who had been in the employ of the American Car & Foundry Company (hereinafter called the car company) at St. Louis, Missouri. She brought her action to recover for the negligent killing of Kettelhake by the movement of a certain train of cars operated by the car company in the yard adjacent to its plant whilst Kettelhake was working under an unfinished car. Her action was brought in the circuit court of the city of St. Louis, and the car company, a New Jersey corporation, William W. Eilers and Quincy Martin, citizens of Missouri, as was the plaintiff, were made joint defendants. It is conceded that the action was properly brought jointly against the car company and the defendants Eilers and Martin. The negligence charged was in substance that the defendants omitted to instruct and require their employees to so mark cars under and about which other employees were engaged in work that all persons would know whether employees were working under such cars; negligently omitted to notify Kettelhake that defendants were about to move the car under which he was working; negligently omitted to discover that Kettelhake was under and repairing the car; and negligently caused the wheels and trucks of the car under which he was working to run over him.

Answers were filed and issues joined, and the case was called for trial in the circuit court of the city of St. Louis; and at the close of the plaintiff's evidence each of the defendants requested the court to give in its behalf a peremptory instruction to find for the defendant. Under the Missouri practice such instructions are usually referred to as demurrers to the evidence. The court sustained the demurrer offered by the defendant Martin and that offered by the defendant Eilers, and overruled the demurrer offered by the defendant car company, to which action of the court in sustaining the demurrers offered by Martin and Eilers, plaintiff then and there excepted, and saved her exceptions at the time. Plaintiff asked leave to take an involuntary nonsuit as to the defendants Eilers and Martin, with leave to move to set aside the same, and leave to take such nonsuit was granted by the court, and said involuntary nonsuit with leave to move to set aside the same was taken; thereupon the defendant car company orally asked the court for time to prepare and file a petition and bond for removal from the state court to the Federal court, which time the court then and there granted. Before said petition for removal and bond were filed, the plaintiff, by leave of court, orally moved the court to set aside the involuntary nonsuit which plaintiff had taken as to defendants Martin and Eilers, which motion was then and there overruled. Thereupon the car company filed its petition for removal and bond, which petition for removal was denied, to which denial the car company then and there excepted. At the same term, and within four days after the nonsuits as to defendants Martin and Eilers were taken, and during the same term that the verdict and judgment were rendered, plaintiff filed separate motions praying the court to overrule the order theretofore made overruling plaintiff's motion to set aside said nonsuits and reinstate the cause, and praying the court to grant plaintiff a new trial as to said defendants, which motions were overruled. Thereafter plaintiff filed her application and prayed an appeal as to the defendant Martin to the supreme court of Missouri, which appeal, by order of the court, duly entered of record, was allowed, and it is conceded that the matter appealed from is now pending in the supreme court of Missouri, and, so far as it appears, is undecided.

A verdict was rendered in favor of the plaintiff against the car company, and afterwards the case was taken to the supreme court of Missouri, which court held that it had no jurisdiction, and that the exclusive jurisdiction was in the St. Louis court of appeals, to which the cause was transferred. That court passed upon other questions to which it is not necessary to refer, and as to the right of removal held that the case was not a removable one. It is to that part of the judgment that this writ of error is taken.

To sustain its contention the plaintiff in error relies upon the case of Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. In that case it appears that there were two petitions for removal in a case in which an action was brought against a nonresident railroad and two citizens of the same state as the plaintiff. The case was first removed to the circuit court of the United States, but upon motion was remanded to the state court, the United States court holding that there was no separable CONTROVERSY BETWEEN THE RAILROAD COMPANY and the plaintiff. when the case was called for trial before a jury in the state court, the plaintiff discontinued his action...