Chicago, Rock Island & Pacific Railway Co. v. Cobbs

• Decision Date: 24 December 1921
• Docket Number: 63
• Citation: 235 S.W. 995,151 Ark. 207
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO. v. COBBS. SAME v. SCOTT
• Court: Arkansas Supreme Court

235 S.W. 995

151 Ark. 207

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO. v. COBBS.

SAME v. SCOTT

No. 63

Supreme Court of Arkansas

December 24, 1921

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

Thomas S. Buzbee and George B. Pugh, for appellant.

1. The cause should have been removed. The facts requisite to Federal court jurisdiction existed. Comp. Statutes, § 991. Section 1010, Id., was fully complied with, and section 1033, Id. under the circumstances of the case would not justify the lower court in denying the petition. 265 F. 715; 261 Id. 697; 39 Id. 581; 152 U.S. 634; 268 F. 610. The statute, § 8569, C. & M. Digest, on which this case is based, localizes the cause of action, so that is could be brought in a State court only in Hot Spring county, and it could, therefore, have been brought by the plaintiffs in the United States District Court in which that county is situated. 155 U.S. 404; 250 Id. 308.

2. There is no sufficient testimony to justify the verdict. In none of railroad fire cases decided by this court, was there as little excuse for a finding that the fire was caused by the railway company as in this case. 67 Ark. 371; 76 Id. 132; 77 Id. 434; 79 Id. 12; 82 Id. 3; 89 Id. 273; 92 Id. 569; 124 S.W. 771; 97 Ark. 54; 100 Id. 207; 105 Id. 374; 119 Id. 143; 121 Id. 585; 126 Id. 236; 142 Id. 41.

3. Instructions 1 and 2 were argumentative and prejudicial in that they told the jury that the money awarded by them to the plaintiff would, to the extent of $ 8,329.84, be paid to the insurance companies, and that he would get nothing unless the verdict was for a greater sum than that amount. This error was repeated in instruction 9. 82 Ark. 424; 120 Id. 1; 87 Id. 243; 124 Id. 588; 128 Id. 479.

D D. Glover and Cockrill & Armistead, for appellees.

1. It is the duty of a State court to refuse to remove a cause to the Federal court, if the petition for removal shows on its face that the cause is not removable. 98 Ark. 507; 120 Id. 583; 75 Id. 116; 131 U.S. 240. The court properly refused to remove the cause. 107 Ark. 512; 129 Id. 550; 203 U.S. 449; 209 U.S. 490; 219 U.S. 363; 228 U.S. 278; 240 U.S. 97; 226 F. 615. The rule is that all the plaintiffs must be residents of the district to entitle a non-resident defendant to removal. 133 U.S. 315; 138 U.S 595; 106 U.S. 191; 250 U.S. 308.

Our State statute does not localize the action; but if it does that would not give jurisdiction to the Federal courts. Federal jurisdiction is controlled absolutely by Congress. U. S. Comp. Statutes, vol. 3, pp. 2916 et seq. Unless this suit could have been brought originally by the insurance companies in the United States court, it is not removable. Judicial Code, § 28, Comp. Stat. § 1010. A fire case, though localized by State statute, falls under none of the exceptions provided for in section 51, Judicial Code, Comp. Stat. § 1033.

There is no separable controversy in this case. The insurance companies are parties in interest, and their presence as parties plaintiff destroys the right of removal. 248 F. 618; 247 U.S. 518; 218 F. 315; 202 Id. 648; 197 Id. 79; 7 Id. 257; 208 Id. 666; 8 N.W. 606; 59 F. 984; 94 Id. 686; 93 N.W. 139; 116 P. 819; 76 Id. 1075; 66 N.W. 1144; 53 N.W. 394; 47 P. 450; 48 Id. 1045; 26 Id. 838; 39 Id. 690. See also C. & M. Digest, §§ 1089, 1095, 1096, 1097; 38 Ark. 72; 56 Id. 116; 19 Id. 566; 14 Id. 603; 3 Id. 565; 93 Id. 447; 124 Id. 143. In any event the insurance companies had the right to join as plaintiffs, and having elected to sue jointly, the right of removal is destroyed. 176 U.S. 321.

2. Appellant's objections to the instructions given were general only. It is too late now to urge specific objections.

3. Interest at 6 per cent. from date of loss is recoverable in cases of this kind. 50 Ark. 169; 63 Tex. 57.

OPINION

MCCULLOCH, C. J.

These are actions instituted in the circuit court of Hot Spring County against appellant railway company to recover damages under the statute which makes such corporation liable for injury to property caused by fire communicated from a locomotive. Crawford & Moses' Digest, § 8569. The cases were consolidated and tried together, and resulted in a judgment in favor of each of the appellees.

The first mentioned case was instituted by L. E. Cobbs, the owner of the destroyed property, and certain insurance corporation, which had insured the property and paid the damage to the extent of the amount of the respective policies, and joined in the suit under a written assignment from the assured. The actual amount paid under the policies aggregated the sum of $ 8,200. In the complaint it was alleged that the total value of the property destroyed was $ 20,000, and there was a prayer for recovery of that sum by the plaintiffs jointly. In that case the verdict was for the recovery of the sum of $ 15,000 by all of the plaintiffs. Cobbs died during the pendency of the appeal in this court, and there was a revivor in the name of his administrator.

In the Scott case property is alleged to have been destroyed to the value of $ 250, and the recovery was in favor of appellee Scott for that amount.

The property of Cobbs which was destroyed by fire was the machinery and other equipment of a saw and planing mill, and lumber stored therein. The Scott property was logs and lumber at the mill.

Appellant filed in the Cobbs case, in apt time, a petition and bond for removal to the Federal court, and the refusal of the court to order the removal is one of the grounds urged for a reversal of the judgment. According to the allegations of the complaint and of the petition for removal, plaintiff L. E. Cobbs was a citizen and resident of Hot Spring County; the plaintiff insurance companies were foreign corporations domiciled, respectively, at Liverpool, England, and at Philadelphia, Pennsylvania; and the defendant, Chicago, Rock Island & Pacific Railway Company, is a corporation incorporated and domiciled in the State of Illinois but operating lines of railroad in Arkansas. The injury is alleged and shown to have occurred in Hot Spring County.

We have repeatedly decided this question of removability of a cause against the contention of appellant. St. L. & S. F. R. Co. v. Kitchen, 98 Ark. 507, 136 S.W. 970; C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512; Central Coal & Coke Co. v. Graham, 129 Ark. 550, 196 S.W. 940; Central Coal & Coke Co. v. Orwig, 150 Ark. 635, 235 S.W. 390. Section 28 of the U.S. Judicial Code (Compiled Statutes, § 1010) restricts the right of removal of cases from State to Federal courts to such cases of which the Federal courts are given original jurisdiction; and section 51 of the Code (Compiled Statutes, § 1033) provides that, with certain exceptions, where the jurisdiction is founded only on the diversity of citizenship, suit can be brought only in the district of the residence either of the plaintiff or defendant. In St. L. S. F. R. R. Co. v. Kitchen, supra, we held, following what we conceived to be the decisions on this subject of the Supreme Court of the United States in the case of Ex parte Wisner, 203 U.S. 449, 51 L.Ed. 264, 27 S.Ct. 150, that in a suit brought against a foreign corporation in a State court outside of the Federal district in which the plaintiff resided there was no right of removal under the Federal statutes on the ground of diversity of citizenship. The other cases cited have followed our original decision, and since that time there has been no additional ruling on the question by the Supreme Court of the United States. The United States Circuit Court of Appeals for the Eighth Circuit in Kansas Gas & Electric Co. v. Wichita Natural Gas Co., 266 F. 614, declared the law to the same effect and cited the Wisner case, supra, as authority. We find no reason for departing from our former decisions on the subject, for we are of the opinion that in those decisions we adopted the construction placed upon the Federal statute by the Supreme Court of the United States. It is contended, however, that the application of the Federal statute is different in the present case for the reason that the statute on which this suit is based makes the action a local one and requires it to be brought in the county where the injury occurred. We cannot see that this fact changes the application of the Federal statute, which must be looked to alone for the purpose of determining the jurisdiction of the Federal courts and the right of removal to those courts. In other words, the fact that the action is local does not change the effect of the Federal statute which fixes the jurisdiction, except in specified instances, not related to the present controversy, in the district of the residence of either the plaintiff or defendant. The territorial jurisdiction of the Federal court is entirely within the control of Congress, and, even if instances may be found where the right to remove is entirely denied by circumstances, it is a matter for Congress to provide a remedy, and it is not within the province of the courts to devise a method for removing causes which do not fall within the terms of the statute.

It is not shown in the petition or in the complaint that these are separable causes of action, nor is it contended that the causes of action asserted by the different plaintiffs are separable, and it is clear that they are not separable. 'The insurance companies by virtue of the assignment to them of a portion of the right of actions are possessed of an interest in the subject-matter in controversy, and are therefore necessary parties. Cobbs, the other plaintiff, was a necessary party, not only from the fact that he was the owner of an interest in the subject-matter of this controversy, but also for the reason that he was assignor of...