Clark v. Southern Pac. Co.

• Decision Date: 20 December 1909
• Docket Number: 500.
• Citation: 175 F. 122
• Parties: CLARK v. SOUTHERN PAC. CO.
• Court: U.S. District Court — Western District of Texas

175 F. 122

CLARK v. SOUTHERN PAC. CO.

No. 500.

United States Circuit Court, W.D. Texas, El Paso Division.

December 20, 1909

[Copyrighted Material Omitted]

The question to be determined arises upon a motion to remand the cause to the state court. Suit was originally instituted by the plaintiff in the district court of El Paso county, Tex and removed to this court by the defendant. The purpose of the suit is to recover damages of the defendant, in excess of $2,000, for injuries alleged to have been sustained by the plaintiff in the territory of Arizona on or about June 13 1909, while engaged in the performance of his duties as brakeman on a freight train. Briefly stated, it is alleged by the plaintiff in his original petition, filed in the state court, that his injuries resulted from the use of defective appliances by the plaintiff without fault or negligence on his part. In connection with the pleadings the following stipulation was entered into by counsel of the respective parties: 'For the purpose of correcting the record in the above-styled cause, we, the attorneys for plaintiff and defendant, hereby agree to the following facts: (1) That the plaintiff, James L. Clark, at the time of the filing of the above-styled and numbered suit and continuing up to the present time, was and is a citizen of the town of Yuma, territory of Arizona. (2) That the defendant, the Southern Pacific Company, is a corporation duly and legally incorporated under the laws of the state of Kentucky, and is a citizen of said state. (3) That plaintiff met with his accident at or near a station on defendant's line of railroad known as Ligurta, territory of Arizona. (4) It is further agreed that the cause of action of plaintiff against defendant, if any he has, is based upon the act of Congress known as the Employers' Liability Act of 1908. ' A copy of the record was filed in this court September 18, 1909. On the 20th of September interrogatories were propounded and a commission issued to take the testimony of witnesses, and on October 14th the depositions were returned and filed in this court. The following notice, given by the plaintiff to the defendant, was attached to the interrogatories: 'In the United States Circuit Court in and for the Western District of Texas at El Paso, Texas; October Term, 1909. James L. Clark v. Southern Pacific Company. No. 500. To the defendant, the Southern Pacific Company, or Messrs. Beall, Kemp & Ward, its attorneys of record. You, and each of you, are hereby notified that five (5) days after service hereof, we will apply to the clerk of the United States Circuit Court for the Western District of Texas at El Paso, Texas, for a commission to take the deposition of (here follow the names of certain witnesses) whose answers to the attached interrogatories will be used by plaintiff as evidence on the trial of the above-styled and numbered cause. ' After the interrogatories were filed an agreement was entered into by the parties, waiving service of notice, etc., in the following language: 'We, the attorneys for defendant in the above-styled and numbered cause, hereby waive time, notice, service and copy, and agree that a commission may issue on the foregoing direct and attached cross-interrogatories without any further notice or filing. We also agree that, in the event this case is remanded to the state court, this deposition may be used. ' The session of the court began October 4th and on the following day the plaintiff filed a motion to remand the cause to the state court as follows: 'Comes now plaintiff in the above-styled and numbered cause, and asks that the court remand this cause to the district court of El Paso county, Texas, for the following reasons, and each of them, to wit: First. Because this court is without jurisdiction to try the issues set up in the pleading. Second. Because neither of the said parties is a citizen of the city and county of El Paso, and state of Texas, and the Western district of Texas. Third. Because the pleading of plaintiff filed in the district court of En Paso county, Texas, on which the application for removal was based, sets up a common-law action, and does not plead or rely upon the federal employer's liability act. Fourth. Because the honorable district judge, who granted the order to remove same, erred in allowing said case to be removed to this court.' court.'

Patterson & Wallace, for plaintiff.

Beall, Kemp & Ward, for defendant.

MAXEY District Judge (after stating the facts as above).

As the plaintiff is a citizen of the territory of Arizona, it is evident that the suit cannot be removed on the ground of diverse citizenship. A citizen of a territory is not a citizen of a state, and to confer jurisdiction upon the courts of the United States, the diversity of citizenship must exist between citizens of different states. Cameron v. Hodges, 127 U.S. 325, 8 Sup.Ct. 1154, 32 L.Ed. 132; Barney v. Baltimore, 6 Wall. 280, 18 L.Ed. 825; Hepburn v. Ellzey, 2 Cranch, 445, 2 L.Ed. 332; New Orleans v. Winter, 1 Wheat. 91, 4 L.Ed. 44. The removability of the suit will therefore depend upon the second ground relied on by the defendant, in its petition for removal, to wit, that the plaintiff's cause of action arises under the provisions of the act of Congress known as the employer's liability act. Neither a constitutional question nor one requiring the interpretation of treaty provisions is here involved, and removal is sought on the ground that the suit arises under a law of the United States. To authorize removal in such a case, it must appear (1) that the suit actually arises under a federal statute, (2) that the plaintiff's statement of his own claim discloses that it is one so arising, and (3) that the suit is one of which the Circuit Court has original jurisdiction. See, generally, Tennessee v. Bank, 152 U.S. 454, 14 Sup.Ct. 654, 38 L.Ed. 511; Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264; Chappell v. Waterworth, 155 U.S. 102, 15 Sup.Ct. 34, 39 L.Ed. 85; Minnesota v. Northern Securities Company, 194 U.S. 48, 24 Sup.Ct. 598, 48 L.Ed. 870; Railroad Company v. Davidson, 157 U.S. 201, 15 Sup.Ct. 563, 39 L.Ed. 672; Railway v. Skottowe, 162 U.S. 490, 16 Sup.Ct. 869, 40 L.Ed. 1048; Railroad Company v. Mottley, 211 U.S. 149, 29 Sup.Ct. 42, 53 L.Ed. 126; In re Winn, 213 U.S. 458, 29 Sup.Ct. 515, 53 L.Ed. 873; In re Dunn, 212 U.S. 374, 29 Sup.Ct. 299, 53 L.Ed. 558.

1. Does the suit arise under a law of the United States? The cause of action is based upon the second section of the act of Congress entitled, 'An act relating to the liability of common carriers by railroad to their employees in certain cases,' approved April 22, 1908, c. 149, 35 Stat. 65, 66 (U.S. Comp. St. Supp. 1909, p. 1171). The section reads as follows:

'That every common carrier by railroad in the territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.'

That the suit directly arises under the act of Congress was ruled by this court in the recent case of Cound v. Railway Company, 173 F. 527; and it is deemed unnecessary to pursue the argument further except to say, in the language of Mr. Justice Bradley, referring to causes by or against federal corporations, that the suit 'is pervaded from its origin to its close by United States law and United States authority. ' Provident Savings Society v. Ford, 114 U.S. 642, 5 Sup.Ct. 1108, 29 L.Ed. 261.

2. Does the petition of the plaintiff disclose that the suit is one arising under federal law? The Cound Case responds affirmatively also to the question thus propounded. In that case the following language was employed:

'This court therefore having jurisdiction of the cause as one arising under a law of the United States, it is quite immaterial whether the plaintiff declare in his petition expressly upon the act, as in the present case he did in his original petition, or whether the pleadings be silent touching jurisdictional averments. If the case arise, as did the case before the court, under the second section of the employer's liability act-- that is, if an employe of a carrier by railroad suffer personal injury from the negligence of the latter while employed in the performance of his duty, and such injury result from an accident, occurring in the territories-- appropriate allegations of such facts are alone sufficient to confer jurisdiction of the case upon a United States court, without specially pleading the act or without referring to its provisions. This result follows necessarily,

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