Cound v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 06 November 1909
• Docket Number: 492.
• Citation: 173 F. 527
• Parties: COUND v. ATCHISON, T. & S.F. RY. CO.
• Court: U.S. District Court — Western District of Texas

173 F. 527

COUND v. ATCHISON, T. & S.F. RY. CO.

No. 492.

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

November 6, 1909

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Patterson & Wallace, for plaintiff.

Turney & Burges, for defendant.

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

As disclosed in the statement of the case, this suit was brought by the plaintiff to recover damages of the defendant, in excess of $2,000, for injuries which he received during the month of March, 1909, in the territory of New Mexico, while discharging his usual duties as brakeman on one of the defendant's freight trains. The plaintiff is a citizen of Texas, and resides within the Western district of the state and the defendant is a common carrier incorporated and organized under the laws of the state of Kansas, and operates a line of railway from El Paso, Tex., through New Mexico, and into the state of its incorporation. It maintains a general office, where its records are kept, in the city of Topeka, Kan. The sole question submitted for decision is whether this court has jurisdiction, over the protest of the defendant, to hear and determine the cause. On the one hand, it is insisted by the plaintiff that the jurisdiction obtains, since diverse citizenship exists and the suit was brought in the district of his residence, where due service was had upon an authorized agent of the defendant. Upon the other, the defendant contends that the suit should be brought in the district of which it is an inhabitant, to wit, the district of Kansas, because the jurisdiction claimed is not founded only on the fact that the suit is between citizens of different states, but it is based upon the additional ground that the suit is one arising under a law of the United States.

Which of these divergent views is correct? To answer the question satisfactorily it becomes necessary to ascertain (1) whether the suit arises under a law of the United States; and (2) whether, if so arising, it was brought in the proper district. As to the first suggestion, the petition of the plaintiff discloses that the cause of action had its origin in the territory of New Mexico, and subsequent to the passage of the act, entitled 'An act relating to the liability of common carriers by railroad to their employes in certain cases,' popularly known as the 'Employer's Liability Act.' Act April 22, 1908, c. 149, 35 Stat.pt. 1, pp. 65, 66. Section 2 of the act is in the following words: '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 employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes 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 Congress has, within constitutional limitations, full and complete legislative authority over the people of the territories, admits of no question. 'Congress may not only abrogate laws of the territorial Legislatures,' said Mr. Chief Justice Waite, speaking for the court in National Bank f. County of Yankton, 101 U.S. 133, 25 L.Ed. 1046, 'but it may itself legislate directly for the local government. It may make a void act of the territorial Legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the territories and all the departments of the territorial governments. It may do for the territories what the people, under the Constitution of the United States, may do for the states. ' See, also, Mormon Church v. United States, 136 U.S. 42-44, 10 Sup.Ct. 803, 34 L.Ed. 481, and authorities cited.

Here, then, is an act of Congress, enacted for the purpose of enabling employes of common carriers by railroad to recover damages for injuries suffered by them while employed by the common carriers in the territories. The section of the act quoted as specific application to the territories, and, being the supreme law of the land (Const. art. 6), supersedes all other laws embracing the same subject-matter. By this act the common law is modified in essential particulars; as, for example, where the injuries of the employe result in death, the cause of action survives to his personal representatives for the beneficiaries named in the act. Section 2 of the act in effect abolishes the common-law doctrine of fellow servant, and sections 3 and 4 materially modify, if they do not practically destroy, the common-law doctrine of contributory negligence and of assumed risk. Section 5 renders void any contract, rule, regulation, or device whatsoever intended by the common carrier to exempt itself from any liability created by the act.

When the act is analyzed, it becomes apparent that it was the purpose of the Congress to confer rights and benefits upon the injured employe which were denied him by the common law; and hence the existence of a common-law right of action on the part of an injured employe cannot, in reason, be claimed in the presence of this act of Congress. Indeed, the act is the law, and the only law, under which suits like the present one may be brought. It is the law of the case, by which the rights of the employe and the liability of the carrier are measured. The very subject-matter of the controversy is federal. The suit involves the construction, application, and effect of an act of Congress (Swafford v. Templeton, 185 U.S. 487, 22 Sup.Ct. 783, 46 L.Ed. 1005; Wiley v. Sinkler, 179 U.S. 58, 21 Sup.Ct. 17, 45 L.Ed. 84); and, tested by all the authorities, it is one arising under a law of the United States. It was said by Mr. Justice Strong, as the organ of the court in Tennessee v. Davis, 100 U.S. 264, 25 L.Ed. 648, that:

'A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.'

See also, Wyman v. Wallace, 201 U.S. 230, 26 Sup.Ct. 495, 50 L.Ed. 738; Defiance Water...