Chicago, R.I. & P. Ry. Co. v. Warren
| Decision Date | 17 April 1928 |
| Docket Number | 12356. |
| Parties | CHICAGO, R.I. & P. RY. CO. v. WARREN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 24, 1928.
Application to File Second Petition for Rehearing Denied Aug. 24, 1928.
Syllabus by the Court.
Where in a civil suit for damages against a nonresident corporation, a petition, bond, and notice for removal of the cause to federal court are filed, and defendants asks of, and obtains from, trial judge a ruling thereon, evidenced by formal order which denies removal, and defendant takes no steps to pursue his remedy in federal court, but files his answer, and case is tried in state court upon issues made and defendant, losing, relies alone upon appeal to correct any error in ruling on petition for removal, defendant must save his exception and present same to trial court and to appellate court, all in accordance with procedure and practice of state courts; otherwise the alleged error will be taken as waived.
To constitute a "final order" in an action, unless otherwise provided by statute, it must be an order affecting a substantial right in the action, the effect of which is to determine the action and prevent a judgment. An order denying petition of removal of a case from a state to a federal court is not such a "final order" under our statute with reference to appeals.
A motion for new trial, based upon the words "irregularity in the proceedings of the court by which the party was prevented from having a fair trial," does not present to the trial court nor to this court, on appeal, an alleged error in a formal order of the court denying removal of said cause from the state court to federal court on the ground of diversity of citizenship.
Where a civilian minor is invited by a captain of company of national guard to go with the company on an encampment, and act as assistant mess sergeant, accepts the invitation, and actually enters upon performance of the work, and is guilty of no concealment or bad faith in taking passage on a railroad train transporting the company to the encampment, and, where captain of company applies for transportation for 55 men, and the railroad furnishes a group ticket for the 55 men, and all the fares are paid, and where railroad imposes no condition with respect to men to be transported, other than that they shall be such as captain designates, and such 55 men including the minor, are taken aboard the train whereon the said minor is injured during the trip by negligence of the carrier, such carrier is not entitled to a peremptory instruction either to the effect that plaintiff is not a passenger or that he is not entitled to recover, and it is not error for the court to refuse such tendered instructions.
One becomes a passenger on a railroad train when he in good faith puts himself into the care of the railroad company and enters its coach to be transported under a contract, and is received and accepted as a passenger by the company.
Where a passenger on a railroad receives an injury while on the platform due to negligent handling of train, and also negligent failure of the road to equip its coaches with chaffing irons, and thereby leaving the bumpers exposed section 5524, C. O. S. 1921, will not preclude recovery by plaintiff, where the evidence shows that the train was actually or practically stopped, and that plaintiff was on the platform for the purpose of disembarking or was passing over platform to secure personal belongings from another coach preparatory to disembarking, and the question of whether or not plaintiff was guilty of negligence in going on the platform at the time is for the determination of the jury.
Evidence examined, and held that, subject to modification made in succeeding paragraph, the judgment of the court is sustained by the evidence.
Where there is a recovery in an amount sufficient to convince the court that the same is excessive, and was the result of passion and prejudice, this court will require a remittitur by plaintiff, and, if same is not filed, the cause will be reversed and remanded for new trial.
Commissioners' Opinion.
Appeal from District Court, Marshall County; Geo. S. March, Judge.
Action by Edward Warren, a minor, by his next friend, Joe Warren, against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, unless plaintiff files a remittitur.
W. R. Bleakmore, John Barry, A. T. Boys, and W. F. Collins, all of Oklahoma City, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter, of Oklahoma City, and A. G. Morrison, of El Reno, for defendant in error.
The parties will be referred to in the order in which they appeared in trial court. Edward Warren, a minor, by his father, Joe Warren, as next friend, brought this action for damages for personal injuries against Chicago, Rock Island & Pacific Railway Company in district court Marshall county, Okl. The petition alleged that plaintiff was a resident of Canadian county, Okl., in Western Judicial District of the United States for Oklahoma; that defendant was a foreign corporation, organized and existing under laws of Illinois and Iowa, and engaged in maintenance and operation of a railroad through Oklahoma and other states. It was alleged also that Marshall county was within Eastern Judicial District of United States for Oklahoma, and that, on August 5, 1920, plaintiff, while a passenger on defendant's road, was severely and permanently injured in his left foot through negligence of said defendant.
Defendant filed its petition, bond, and notice for removal of said cause to United States court, which are formal and adequate for such purpose. Said petition sets out diversity of citizenship. October 25, 1920, this petition was heard and denied by the judge of district court of Marshall county.
Defendant filed in said court its answer, consisting of general denial and plea that, if plaintiff were injured, he contributed thereto by riding on platform while train was in motion. Plaintiff replied by verified general denial.
Upon trial before a jury, a verdict and judgment for $20,000 was rendered for plaintiff, from which this appeal is taken. Motion for new trial contained seven grounds and petition in error two grounds, to wit: (1) Error in overruling motion for new trial; (2) error in granting judgment against defendant.
The determinative questions may be reduced to the following:
(1) Was the order of district court denying removal a final order under our statute relating to appeals? .
(2) Does motion for new trial based on "irregularity in the proceedings of the court * * * by which defendant was prevented from having a fair trial" present the alleged error of trial court in overruling petition for removal?
(3) Was the verdict contrary to law?
(4) Was the verdict supported by the evidence?
(5) Was defendant entitled to an instructed verdict?
(6) Was it error to permit plaintiff to testify that he thought he had the right to ride on defendant's train?
(7) Was there error in the court's instruction warranting reversal?
(8) Was the verdict excessive?
1. Now addressing ourselves to these inquiries in order: Was the denial of removal a final order? Section 781, C. O. S. 1921, provides:
We have found no case in Oklahoma passing directly upon the question as to whether or not the ruling on a petition to remove a case to United States court is an appealable order. The following cases, however, by analogy, are of value:
In Chicago Building & Mfg. Co. v. Kirby, 10 Okl. 730, 63 P. 966, it is said in the syllabus:
"Where a court has no jurisdiction over the particular cause or of the person of the defendant, and the defendant appears specially for the purpose of calling the attention of the court to such irregularities, and the court thereupon overruled his motion to such jurisdiction, he may save his exception, file his answer and proceed to trial without waiving such error; and he may take advantage of such error on appeal to a higher court."
To the same effect: Okl. Fire Ins. Co. v. Barber Asphalt Co. et al., 34 Okl. 149, 125 P. 734; St. L. & S. F. R. Co. v. Clark, 17 Okl. 562, 87 P. 430; Austin Mfg. Co. v. Hunter, 16 Okl. 86, 86 P. 293.
Attention is called to Spaulding v. Polley, 28 Okl. 764, 115 P. 864, where the same rule is announced, and, in addition, it is held that movant was not compelled to appeal within the statutory time, but might have the benefit of his exception on appeal of the whole case.
In Commonwealth Cotton Oil Co. v. Hudson, 62 Okl. 23, 161 P. 535, the court in the opinion says:
"It is, we think, the well-settled rule of this court that, upon the overruling of such a plea to the jurisdiction, defendant may go on and answer and defend the suit brought against him, and, having saved his exceptions to the ruling of the court on his plea of the jurisdiction, may have such ruling reviewed here upon an appeal, bringing up the whole case."
To same effect: Wm. Cameron & Co. v. Consolidated School District No. 1, 44 Okl. 67, 143 P. 182.
The second paragraph of syllabus in Oklahoma City Land & Development Co. v. Patterson, 73 Okl. 234, 175 P. 934, is as follows:
"A 'final order' is one ending the particular...
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