Chicago & A.R. Co. v. Allen

• Decision Date: 26 November 1917
• Docket Number: 2535.
• Citation: 249 F. 280
• Parties: CHICAGO & A.R. CO. v. ALLEN.
• Court: U.S. Court of Appeals — Seventh Circuit

249 F. 280

CHICAGO & A.R. CO. v. ALLEN.

No. 2535.

United States Court of Appeals, Seventh Circuit.

November 26, 1917

Rehearing Denied January 22, 1918.

Edward W. Everett, of Chicago, Ill., for plaintiff in error.

George C. Otto, of Chicago, Ill., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge.

Plaintiff in error, herein called the defendant, attacks the jurisdiction of the federal court. It asserts that defendant in error, herein called the plaintiff, was not engaged in interstate commerce at the time he received his injury, and no other ground of federal court jurisdiction appearing, the action should have been dismissed. The facts in respect to the character of plaintiff's employment are disclosed, in part, by a stipulation, which is as follows:

'It is stipulated by and between the parties to the above-entitled cause * * * that prior to and on the 25th day of September, A.D. 1912, and at the time plaintiff claims to have been injured, the defendant owned, was possessed of, and was operating a railroad and railroad shops, railroad cars, locomotive engines, and rolling stock, tools, appliances, machinery, and conveniences, and in connection therewith was during all said time engaged in intrastate and interstate commerce, and that said plaintiff was, at the time he claims to have been injured, in the employ of said defendant, and as such employe at the time he claims to have been injured was engaged in working on or about and repairing an engine which belonged to defendant which engine prior to the time plaintiff claims to have been injured had for a long time been used by it indiscriminately in both interstate and intrastate commerce, and which engine was at the time plaintiff claims to have been injured intended by said defendant to be used thereafter in interstate and intrastate commerce as occasion might require, and which engine was shortly after the time plaintiff claims to have been injured used by said defendant in both interstate and intrastate commerce.'

Defendant also showed that the engine was taken to the shops on the 8th day of July, and was removed on the 28th day of September; that the repairs consisted of a general overhauling of the engine. Defendant offered to show that the engine was hauled from Springfield to Bloomington as a dead engine on July 2, 1912; that it lay in the yards at Bloomington for six days, when it was taken to the shops for general and extended repairs, and remained in the shops until September 28th, when it was ready for use; that prior to June 23, 1912, it had been used in drawing a local passenger train within the state of Illinois and not beyond; that after September 28th, and on October 2d, it was put in use at Taluca drawing a local passenger train, which did not originate in or go beyond the state of Illinois. The court refused to receive such testimony, on the ground that defendant was bound by a letter corroborating a statement made, in open court, prior to the date of the stipulation, the contents of which letter were:

'Pursuant to conversation had before Judge Carpenter recently, we agree that when this case is tried we will admit in open court that Allen, when injured, was engaged in interstate commerce, and that his rights to recover against the defendant and its liabilities to him are controlled exclusively by the federal Employers' Liability Act. In other words, we will make no contention that, when injured, he was engaged in merely intrastate commerce employment.'

Plaintiff early sought a bill of discovery, and the statement in open court and the letter referred to came as a result of plaintiff's endeavors to obtain such discovery.

Upon this record, we are confronted by the question: Did the court have jurisdiction of the case? It is elementary that the facts showing the jurisdiction of the federal court must affirmatively appear. The party who attacks the court's jurisdiction is not required to establish the negative. If the record fails to show the necessary jurisdictional facts, the action must be dismissed. It is also elementary that a federal court does not acquire jurisdiction by consent of parties. Nor will a stipulation as to facts, which are not 'the facts in the case,' control. True, these facts may be established by stipulation, as well as by admissions, or by any other competent testimony. But it is the facts, and not conclusions, upon which jurisdiction must depend.

The offer of the letter written prior to the stipulation was not accepted by the plaintiff, but was rejected by him, with a full appreciation of the applicability of these rules. While we might well conclude that the offer of the letter had no bearing in the present case, because never accepted, and because the agreement of the parties was immediately thereafter merged into the written stipulation, we are also required to reject it, if the record shows the plaintiff was in fact not engaged in interstate commerce at the time he received his injuries. Ignoring the significance of the rejected testimony offered by the defendant, and confining our attention entirely to the stipulation, we find therefrom that defendant was a carrier engaged in interstate commerce, and plaintiff was its employe at the time he received the injury. The controverted issue for determination then is: Does the testimony show plaintiff to have been engaged in interstate commerce at the time he was repairing the engine and was hurt?

The true test of employment in such commerce in the sense intended is: Was the employe at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it? Shanks v. Del., L. & W.R.R. Co., 239 U.S. 556, 558, 36 Sup.Ct. 188, 60 L.Ed. 436, L.R.A. 1915C, 797; C., B. & Q.R.R. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941. What is 'interstate transportation or work so closely related to it as to be practically a part of it,' has been the subject of inquiry in many cases. See Pederson v. Del., L. & W.R.R., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; Ill. Cent. R.R. v. Behrens, 233 U.S. 473, 34 Sup.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163; Del., L. & W.R.R. v. Yurkonis, 238 U.S. 439, 35 Sup.Ct. 902, 59 L.Ed. 1397; Shanks v. Del., L. & W.R.R. Co., 239 U.S. 556, 36 Sup.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797; Seaboard Air Line Co. v. Koennecke, 239 U.S. 352, 36 Sup.Ct. 126, 60 L.Ed. 324; C., B. & Q.R.R. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941; L. & N.R.R. Co. v.

Parker, 242 U.S. 13, 37 Sup.Ct. 4, 61 L.Ed. 119; Ill. Cent. R.R. v. Peery, 242 U.S. 292, 37 Sup.Ct. 122, 61 L.Ed. 309; Erie R.R. v. Welsh, 242 U.S. 303, 37 Sup.Ct. 116, 61 L.Ed. 319; M. & St. L.R.R. v. Nash, 242 U.S. 619, 37 Sup.Ct. 239, 61 L.Ed. 531; M. & St. L.R.R. v. Winters, 242 U.S. 353, 37 Sup.Ct. 170, 61 L.Ed. 358; N.Y. Cent. R.R. v. White, 243 U.S. 188, 37 Sup.Ct. 247, 61 L.Ed. 667, L.R.A. 1917D, 1, Ann. Cas. 1917D, 629; Raymond v. C., M. & St. P.R.R., 243 U.S. 43, 37 Sup.Ct. 268, 61 L.Ed. 583.

Defendant asserts confidently that the facts in this case are governed by the decision in the case of M. & St. L.R.R. v. Winters, 242 U.S. 353, 37 Sup.Ct. 170, 61 L.Ed. 358; while plaintiff, with equal confidence, relies upon Pedersen v. Del., L. & W.R.R., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153. In the case of M. & St. L.R.R. v. Winters, supra, the court said:

'The plaintiff was making repairs upon an engine. This engine 'had been used in the hauling of freight trains over defendant's line, * * * which freight trains hauled both intrastate and interstate commerce, and * * * it was so used after the plaintiff's injury.' The last time before the injury on which the engine was used was on October 18th, when it pulled a freight train into Marshalltown, and it was used again on October 21st, after the accident, to pull a freight train out from the same place. That is all that we have, and is not sufficient to bring the case under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the states. An engine as such is not

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