Bottoms v. St. Louis & S.F.R. Co.

• Decision Date: 03 May 1910
• Citation: 179 F. 318
• Parties: BOTTOMS v. ST. LOUIS & S.F.R. CO.
• Court: U.S. District Court — Northern District of Georgia

179 F. 318

BOTTOMS v. ST. LOUIS & S.F.R. CO.

United States Circuit Court, N.D. Georgia.

May 3, 1910

Smith Hastings & Ransom, for plaintiff.

King &amp Spalding and E. Marion Underwood, for defendant.

NEWMAN District Judge.

This case was removed to the Circuit Court from a state court, in which it was originally brought, and a motion is now made to remand it. In his declaration the plaintiff alleges that he was an engineer in the service of the defendant, and that the defendant railroad company was engaged in interstate commerce, and that he was engineer of a train running from Amory, Miss., to Birmingham, Ala., when his train was derailed by reason of the defective and unsafe condition of the track in several respects, more specifically alleged in the declaration.

The plaintiff is a citizen and resident of the state of Alabama and the defendant is a corporation of the state of Missouri. There is a count in the declaration omitting the statement that the petitioner and the defendant company were engaged in interstate commerce at the time of the accident; but necessarily, if both were engaged in interstate commerce at the time of the alleged injury, the employer's liability act (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St Supp. 1909, p. 1171)), superseding all other law, will be controlling on the question of the jurisdiction of this court and the right of removal. It is very clear that independently of the case being brought under the employer's liability act, there would be no right to remove to the Circuit Court for this district; the plaintiff being a citizen of Alabama, and the defendant a citizen of Missouri. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904.

The case must be determined with reference to the rights of the parties under the employer's liability act of Congress. The point made is that the defendant railway company, having been incorporated in the state of Missouri, and consequently being an inhabitant of that state under the decisions (Macon Grocery Co. v. Atlantic Coast Line, 215 U.S 513, 30 Sup.Ct. 184, 54 L.Ed. . . . ), this court would have no jurisdiction of the case originally, and consequently would not acquire jurisdiction by removal. This is clearly true, unless the contention made here by the defendant is correct; and that is that the right to raise the question as to whether this is...