Bell v. Wabash Ry. Co.

• Citation: 58 F.2d 569
• Decision Date: 12 April 1932
• Docket Number: No. 9229.,9229.
• Parties: BELL v. WABASH RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

58 F.2d 569 (1932)

BELL v. WABASH RY. CO.

No. 9229.

Circuit Court of Appeals, Eighth Circuit.

April 12, 1932.

O. C. Mosman, of Kansas City, Mo. (Mosman, Rogers & Buzard, Don E. Black, and Clay C. Rogers, all of Kansas City, Mo., on the brief), for appellant.

Homer Hall, of St. Louis, Mo. (N. S. Brown, of St. Louis, Mo., on the brief), for appellee.

Before STONE and KENYON, Circuit Judges, and CANT, District Judge.

KENYON, Circuit Judge.

This is a suit brought by appellant as administratrix of the estate of George Owen Bell, asking $50,000 damages for the death of said Bell resulting from injuries received while he was alleged to be engaged with appellee in interstate commerce. The action was commenced in the circuit court of Adair county, Mo., on the 16th day of December, 1929, and is based on the Federal Employers' Liability Act (45 USCA §§ 51-59). It was removed to the federal court upon petition of appellee. The District Court upon hearing overruled appellant's plea to jurisdiction and the motion to remand, and held jurisdiction of the case. When it was called for trial in December, 1930, appellant, excepting to the jurisdiction of the court, refused to prosecute the case in the federal court, and the same was dismissed and judgment entered against appellant.

The contention of appellant is that deceased, Bell, was in the employ of appellee, and was engaged in interstate commerce at the time he was injured, and consequently, under section 6 of the Federal Employers' Liability Act (title 45, § 56 USCA), the case was not removable from the state court to the federal court. Said section is as follows:

"No action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued.

"Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States, and no case arising under this chapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. (Apr. 22, 1908, c. 149, § 6, 35 Stat. 66; Apr. 5, 1910, c. 143, § 1, 36 Stat. 291.)"

It was the contention of appellee that Bell was not engaged in interstate commerce or in any service of the railroad company so closely related thereto as to be a part thereof, and that the statement in the petition that he was engaged in interstate commerce was so palpably false as to constitute a fraud upon the jurisdiction of the federal court in depriving it of jurisdiction. That question is interesting, but in the view we take of this case, it would be a work of supererogation to enter into that disputable field, because we are satisfied that any right of action under the Federal Employers' Liability Act which appellant might have against appellee for negligence causing the death of Bell had expired prior to the time this suit was commenced.

Bell died, according to the allegations of the petition, on Thursday, September 15, 1927. The injury which resulted in his death occurred July 24, 1927. This action was commenced December 16, 1929, or approximately two years and four and a half months after the injury, and two years and three months after his death. The action accrued at the time of his death. Reading Co. v. Koons, Administrator, 271 U. S. 58, 46 S. Ct. 405, 70 L. Ed. 835. The fact appears conclusively from the record, therefore, that no action was brought within two years from the time it arose.

The Federal Employers' Liability Act establishes a new right of action unknown to the common law. The common carrier is liable thereunder in damages to a person suffering injury while he is employed by such carrier in interstate commerce and to his or her personal representative for the benefit of the surviving widow or husband and children of such employee in case of death resulting in whole or in part from the negligence of the officers, agents, or employees of such carrier. Contributory negligence is not a bar to such action, although it bears on the amount of damages recoverable. As part of the act, it is provided by section 6 thereof, supra, that the jurisdiction of the courts of the United States is concurrent with that of the several states, and that no action shall be maintained under the act unless commenced within two years from the date the cause of action arose. If the case arises under the act and is brought in a state court, it cannot be removed to the courts of the United States. In view of the limitation as to the time of suit and the unquestioned fact that over two years had expired from the time the action accrued before suit was brought, the question arises whether the case falls under section 6 of the Federal Employers' Liability Act, and cannot be removed from the state to the federal court. The limitation of said section as to time in which the action may be maintained clearly conditions liability, and enters into the right created as a substantial part thereof. It is not a mere statute of limitations pertaining to the remedy. If the action is not brought within the time provided, the right to proceed under the act is ended. In Judge Sanborn's opinion in Eberhart et al. v. United States, for Use of First Nat. Bank of Belle Fourche, S. D. (C. C. A.) 204 F. 884, 890, 891, he says: "An act of Congress, which at the same time and in itself authorizes or creates a new liability and prescribes the limitations thereof and of its enforcement, makes those limitations conditions of the liability itself. Such an act is not a statute of limitations, and a compliance with the conditions which it prescribes is indispensable to the enforcement of the liability it authorizes or creates * * * because such limitations are conditions of the liability itself and not limitations of the remedy only."

In Rademaker v. E. D. Flynn Export Co., Inc. (C. C. A. Fifth Circuit) 17 F.(2d) 15, 17, the court says: "Section 6 of the Federal Employers' Liability Act provides that no action shall be maintained under it, unless it is begun within two years from the date the cause of action accrued, and is applicable to suits under the Merchant Marine Act. Panama R. R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68. L. Ed. 748. The limitation of that section is upon the right and not merely upon the remedy."

In Atlantic Coast Line Railroad v. Burnette, 239 U. S. 199, 200, 36 S. Ct. 75, 76, 60 L. Ed. 226, the Supreme Court discusses this two-year provision imposed by said section 6, and says: "It would seem a miscarriage of justice if the plaintiff should recover upon a statute that did not govern the case, in a suit that the same act declared too late to be maintained. A right may be waived or lost by a failure to assert it at the proper time. * * *" It was there held that, the action not having been brought within two years, it must fail in the courts of a state as well as in those of the United States.

In American R. Co. of Porto Rico v. Coronas, 230 F. 545, 546, L. R. A. 1916E, 1095, the Circuit Court of Appeals of the First Circuit, referring to the provision of the Federal Employers' Liability Act, says: "The right granted exists only by virtue of the statute, and its scope and effect must be determined therefrom. The language of the act makes it plain that the right and correlative liability thereby established are conditional upon the bringing of the suit within two years from the day the cause of action accrued. The bringing of the action, therefore, within the specified time, is a condition to the exercise of the right, and, if the condition is not complied with, the parties stand, with respect to the...