American Railway Express Co. v. Davis

• Decision Date: 30 April 1923
• Docket Number: 344
• Citation: 250 S.W. 540,158 Ark. 493
• Parties: AMERICAN RAILWAY EXPRESS COMPANY v. DAVIS
• Court: Arkansas Supreme Court

250 S.W. 540

158 Ark. 493

AMERICAN RAILWAY EXPRESS COMPANY v. DAVIS

No. 344

Supreme Court of Arkansas

April 30, 1923

Appeal from Little River Circuit Court; James S. Steel, Judge reversed.

Judgment reversed and cause remanded.

Cottingham Hayes, Green & McInnis, and June R. Morrell, for appellant.

The court erred in permitting the amendment to the complaint which states a new and different cause of action. 102 Ark 20; 60 S.E. 805; 89 A. 277; 107 A. 569, 204 S.W. 954; 45 S.E. 220; 186 U.S. 365; 143 Mo. 137, 32 S.E. 30. Court erred in permitting and refusing the introduction of certain testimony, 6-17 assignments. Should have directed a verdict for appellant. No testimony showing that Davis had authority to compel deceased to line up the trucks. 93 Ark. 397, 125 S.W. 439. 88 Ark. 20. The court erred in giving instructions and in refusing to give appellant's requested instruction No. 7, defining "scope of employment," which was not done in instructions given. 67 Ill.App. 460. Erred also in not giving appellant's requested instructions Nos. 2 and 3 on the burden of proof, none being given on the point. 105 Ark. 213; 116 Ark. 125; 117 Ark. 572. Erred in not giving requested instructions Nos. 6, 9, 10, 11, 13 and 14, presenting appellant's theory of the case. 91 Ark. 572; 122 Ark. 125; 80 Ark. 854; 103 Ark. 260; 152 Ark. 258.

Stephenson & Holloway and A. P. Steel, for appellee.

No error in permitting amendment to complaint. Could have been treated as amended in first instance to conform to evidence introduced without objection. Case was reversed on account of erroneous instructions. 40 Am. & Eng. Ann. Cas. 1916-B, 508; 29 Am. & Eng. Ann. Cas. 1913-D, 735; 36 Am. & Eng. Ann. Cas. 1915-B, 1155; 21 R. C. L. 132; 131 S.W. 963; 96 S.W. 993; 53 S.W. 572. No error in introduction of testimony neither was there error in refusing to direct a verdict for appellant. The record presented a question for the jury. 75 Ark. 579; 132 Ark. 282; 137 Ark. 341; 238 S.W. 50. The instructions as a whole submitted the issues fairly to jury, and the judgment should be affirmed.

Cottingham, Hayes, Green & McInnis, and June R. Morrell, in reply.

Burden was on plaintiff to show that Garrison was acting within scope of his employment. 90 Ark. 104; 105 Ark. 130; 124 S.W. 1073; 105 Ark. 326. Court erred in refusing to give appellant's instruction numbered 1 to 5, to the effect that the court was without jurisdiction of the cause, which should have been transferred to the Federal court. 203 U.S. 449, and 209 U.S. 240.

Stephenson & Holloway and A. P. Steel, in reply to motion to remand and transfer.

No motion to transfer filed in this case; petition and bond filed in case heard on first appeal and not reversed after amendment made to complaint after reversal Can't experiment on case in State court and then remove to Federal Court. 23 R. C. L. 716. Removal Cases, 25 U. S. (L. ed.) 593; 26 U.S. L. ed. 129; 37 U.S. L. ed. 399. Appellant tried its case in the State court, and now, for the first time, seeks to raise the question of removal here on a record made in the old case and on the former appeal. It has waived its question of privilege, and motion to remand should be denied.

OPINION

SMITH, J.

This is the second appeal in this case. The opinion on the former appeal is reported in 152 Ark. 258 (American Ry. Express Co. v. Davis).

A recovery of damages was had upon the theory that the express company, by which Davis, the deceased, was employed, had placed a dangerous instrument, to-wit, a pistol in the hands of Garrison, another employee, of immature judgment, and that, at a time when Garrison was not required by his duties to use or handle the pistol, he had done so wrongfully and negligently, thereby causing its discharge and killing Davis. We held on the former appeal that no case was made on the grounds alleged, and reversed the judgment of the court awarding damages, but did not dismiss the case because, in the opinion of the majority, there was a question in the case whether Garrison had used the pistol in the discharge of his duties as Davis' superior for the purpose of compelling compliance with the directions to Davis to return to work, and had used excessive force in doing so.

Upon the remand of the cause the pleadings were amended to conform to this suggestion, and the cause was tried on that theory, and a verdict was again returned in favor of the plaintiff, from which is this appeal.

The defendant, in apt time, as appears from the former opinion, presented its bond and petition for removal to the Federal court on account of diversity of citizenship. The court overruled that petition, and this action was assigned as error. We disposed of the assignment of error by saying: "The case in that respect falls within the decision of the Supreme Court of the United States in Ex parte Wisner, 203 U.S. 449, 51 L.Ed. 264, 27 S.Ct. 150, to the effect that an action instituted in a Federal district other than that of the residence of either the plaintiff or defendant cannot be removed on the ground of diversity of citizenship. We have followed that rule in numerous cases. See the recent case of C., R. I. & P. Ry. Co. v. Cobbs, 151 Ark. 207, 235 S.W. 995."

This assignment of error is now renewed, but appellee insists that no relief should be granted on that account for the following reasons: (1) That, upon the remand of the cause, a new petition and bond should have been filed when the complaint was amended; (2) That the former opinion is the law of the case.

There was nothing in the amendment to the complaint affecting the right of removal. If that right existed at all, it existed both before and after the filing of the amended complaint. The cause of action sued on was the alleged wrongful death of Davis, and the ground of removal was that of diversity of citizenship.

In the case of Texarkana Telephone Co. v. Bridges, 75 Ark. 116, 86 S.W. 841, we said that the right of removal from the State to the Federal courts, so far as concerns the action of the State court, depends upon and must be determined by the condition of the record in the State court at the time the removal is sought, and we there quoted from the case of Burlington, etc., R. Co. v. Dunn, 122 U.S. 513, 30 L.Ed. 1159, 7 S.Ct. 1262, the following statement of the law: "The theory on which it (the right of removal) rests is that the record closes, so far as the question of removal is concerned, when the petition for removal is filed and the necessary security furnished. It presents, then, to the State court a pure question of law, and that is, whether, admitting the facts stated in petition for removal to be true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit."

The amendment to the complaint gave no right of removal which did not exist when the petition and bond therefor were filed, and the right to remove must therefore be determined as of the time when the petition and bond were filed (they have been filed in apt time), as it is well settled that the right to insist upon a removal of the cause is not waived by filing answer and contesting the suit upon its merits. Texarkana Telephone Co. v. Bridges, supra, and cases there cited on this proposition.

As appears from our former opinion, we upheld the action of the trial court in denying the prayer to remove upon the authority of the case of Ex parte Wisner, 203 U.S. 449, 51 L.Ed. 264, 27 S.Ct. 150. Since then that case has been expressly overruled by the Supreme Court of the United States in the case of Lee v. Chesapeake & Ohio Ry. Co., decided January 22, 1923, 43 S.Ct. 230. In this case Mr. Justice VAN DEVANTER, for the court, said: "The decision was given in 1906, and was a departure from what had been said of the same provisions in prior cases, notably Mexican Nat. R. Co. v. Davidson, 157 U.S. 201, 208, 39 L.Ed. 672, 15 S.Ct. 563, and Sweeney v. Carter Oil Co., 199 U.S. 252, 259, 50 L.Ed. 178, 26 S.Ct. 55. Much that was said in the opinion was soon disapproved In re Moore, 209 U.S. 490, 52 L.Ed. 904, 28 S.Ct. 585, where the court returned to its former rulings respecting the essential distinction between the provision defining the general jurisdiction of the circuit courts and the one relating to the venue of suits originally begun in those courts. But, as the decision was not fully and expressly overruled, it has been a source of embarrassment and confusion in other courts. We had occasion to criticize it in General Invest. Co. v. Lake Shore & M. S. R. Co., supra, and now, on further consideration, we feel constrained to pronounce it essentially unsound, and definitely to overrule it."

It was by the same learned justice there also said: "In this connection it should be observed that the opinion In re Moore is open to the criticism that it seemingly assumes that, where neither party is a resident of the district, the removal, to be effective, needs the plaintiff's assent. We find no support for such an assumption in the provisions we are considering. Under them, as before indicated, the exercise of the right of removal rests entirely with the defendant, and is in no sense dependent on the will or acquiescence of the plaintiff. The opinion In re Moore is qualified accordingly."

The case of General Investment Co. v. Lake Shore & M. S. R. Co., 260 U.S. 261, 43 S.Ct. 106, was decided November 27, 1922, that decision also being subsequent to our own opinion on the former appeal in this case, which was delivered February 27, 1922.

Our former opinion cannot, therefore, be the law of the case, for the reason that the case which we followed in declaring the law has been expressly overruled; and,...