Bedell v. Baltimore & O.R. Co.

• Citation: 245 F. 788
• Decision Date: 27 October 1917
• Docket Number: 9599.,9598,9596
• Parties: BEDELL v. BALTIMORE & O.R. CO. FLICK v. SAME. ROBERTSON v. SAME.
• Court: U.S. District Court — Northern District of Ohio

245 F. 788

BEDELL v. BALTIMORE & O.R. CO. FLICK v. SAME. ROBERTSON v. SAME.

Nos. 9596, 9598, 9599.

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

October 27, 1917

John Ruffalo, of Youngstown, Ohio, for plaintiffs.

Harrington De Ford, Heim & Osborne, of Youngstown, Ohio, for defendant.

WESTENHAVER District Judge.

These three cases are before me on plaintiffs' motion to remand and involve the same question. All the original petitions stated causes of action properly removable to this court. The injuries for which each plaintiff sought to recover were not alleged to have been sustained while the respective plaintiffs and defendants were engaged in an act of interstate commerce, but, on the contrary, such facts as are alleged show that they were not so engaged.

In the Bedell case the summons was served July 17th. It was returnable July 23, 1917. The answer day was August 11, 1917. On August 9, 1917, plaintiff obtained leave of court to file an amended petition instanter, which was accordingly done. A summons against the defendant was issued thereon and served August 14, 1917. The return day of this summons was August 20, 1917, and the answer day September 8, 1917. Thereafter on September 1, 1917, defendant filed its notice and petition for removal with bond, all in proper form, and on September 6, 1917, an order was made removing the cause to this court.

In the Flick and Robertson cases exactly similar proceedings were had and taken; the return day and answer day to the original and amended petitions being as given above. The amended petition filed in each case purports to set up two different causes of action; both, however, being for the same injury. In the first cause of action it is alleged that the defendant was engaged in interstate commerce, and the plaintiff was employed in such commerce at the time the injuries complained of were inflicted. The facts stated independently of these allegations are in no wise different from the statements of the original petition, and except for these allegations would not state a cause of action arising under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1916 Secs. 8657-8665)). The second cause of action omits the allegations respecting interstate commerce, and is the same in substance as the original petition.

In support of the motions to remand, plaintiffs urge, first, that the petition to remove was filed too late, in that it was filed after the time at which by the state law and practice the defendant was required to plead or answer; and, second, that inasmuch as the first cause of action is one under the federal Employers' Liability Act, and not removable, the case cannot be removed here, even if the second cause of action is not under that act and is removable.

I am of opinion that, on the facts above noted, the petition to remove was filed in time. The filing by plaintiffs of amended petitions is an abandonment of the original petitions, and the defendant was not thereafter required to answer the original petitions. City v. Wiehle, 78 Ohio St. 41, 84 N.E. 425. The question then is: When was the defendant required to plead or answer to the amended petition? An amended petition may be filed as a matter of right at any time before the defendant has answered. G.C. Sec. 11360. The defendant has the same time after such an amendment is made to answer as he would have to answer or demur to the original petition. An amendment cannot be regarded as having been made under favor of this section, and the defendant's obligation to answer cannot be regarded as fixed until notice of such amendment shall be served upon the defendant or his attorney. Moorman v. Schmidt, 69 Ohio St. 328, 69 N.E. 617. The original petition in these cases cannot, therefore, be regarded as having been amended until notice was served upon the defendant or his attorney. I am inclined to the opinion, but do not deem it necessary to decide the question now finally, that the answer day to an amended petition filed under this section is the third Saturday after the date when this notice is served. See Neininger v. State, 50 Ohio St. 394, 34 N.E. 633, 40 Am.St.Rep. 674.

The plaintiffs do not seem to have proceeded under this section. They applied to the court for leave to file an amended petition. The court might then, in its discretion, have fixed a time within which the defendant should demur or answer, but did not do so. The plaintiffs, instead of procuring an order fixing the time to demur or answer, or serving notice of the amendment on the defendant or its attorney, which would also have limited the defendant's time to demur or answer elected to sue out a new summons on the amended petition, which fixed in each case August 20, 1917, as the return day, and September 8, 1917, as the answer day. The plaintiffs are bound, in my opinion, by this election and method of procedure. Manifestly plaintiffs could not have taken judgment as for a default at any time earlier than the 8th of September. The notice and removal petitions were filed September 1st. In my opinion, therefore, the defendant proceeded in due time, and before the time at which it was required to demur or...