Cunard S.S. Co. v. Smith
| Decision Date | 11 December 1918 |
| Docket Number | 83. |
| Citation | 255 F. 846 |
| Parties | CUNARD S.S. CO., Limited, v. SMITH. |
| Court | U.S. Court of Appeals — Second Circuit |
This cause comes here on writ of error to the United States District Court for the Southern District of New York. The plaintiff is a subject of the provisional government of Russia and is a resident of the borough of Brooklyn, city and state of New York. The defendant is a foreign corporation organized and existing under the laws of Great Britain.
The action is brought to recover damages in the sum of $25,000 for personal injuries which he received while employed by defendant as a longshoreman on one of its steamships. At the time of his injury the plaintiff was at work in the lower hold of the ship and was engaged in hoisting a part of the cargo of the vessel out of the hold. He was one of a gang of six men engaged in filling tubs or buckets with dirt, the buckets after they were filled being hoisted by means of a winch and tackle and swung over to a lighter on the side of the vessel where the contents were dumped. The opening of the hatch was about twenty feet square.
The allegation is that while the plaintiff was so engaged the bucket was through defendant's negligence and carelessness suddenly and without warning lowered, and that it struck the plaintiff with great force, permanently injuring his spine and back, as well as his chest and left shoulder, and 'permanently injuring him about the head and causing him to suffer from permanent nervous shock and debility. ' The physician who had charge of his case, and who was employed by defendant to treat its employes, was not called by the plaintiff but by the defendant. He testified that when he concluded his treatment the plaintiff was all right and that he could find no possible limitation of motion. The plaintiff obtained a verdict for $2,000.
There are eleven assignments of error. Among the errors assigned it is said that the court erred in denying the defendant's motion to dismiss the complaint, on the ground that no negligence was proved on the part of the defendant, and also on the ground that the plaintiff was shown to have been guilty of contributory negligence and to have assumed the risk. It is also alleged that the court erred in various parts of the charge, and in certain refusals to charge.
Lord Day & Lord, of New York City (Thaddeus G. Cowell, of New York City, of counsel), for plaintiff in error.
Edward J. McCrossin, of New York City (Francis Stockton McDivitt, of New York City, of counsel), for defendant in error.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
ROGERS Circuit Judge (after stating the facts as above).
The complaint in this case must be dismissed, and for a reason not mentioned at the argument. The complaint discloses on its face that it is one which a federal court is without jurisdiction to entertain. The jurisdiction of these courts is derived from the Constitution and the acts of Congress. No jurisdiction is conferred upon the federal courts of a case in which both of the parties are aliens. Montalet v Murray, 4 Cranch, 46, 2 L.Ed. 545; Mossman v Higginson, 4 Dall. 12, 1 L.Ed. 720; Pooley v. Luco (C.C.) 72 F. 561; Prentiss v. Brennan, Fed. Cas. No. 11,385, 2 Blatchf. 162. And this complaint shows that the plaintiff and defendant are both aliens. A court of the United States cannot obtain jurisdiction to hear and decide a case by consent of the parties. People's Bank v. Winslow, 102 U.S. 256, 26 L.Ed. 101; Byers v. McAuley, 149 U.S. 608, 13 Sup.Ct. 906, 37 L.Ed. 867. It was the duty of the District Judge to have dismissed the complaint on his own initiative, even though the defendant did not call the matter to his attention. Judicial Code (Act March 3, 1911, c. 231) Sec. 37, 36 Stat. 1098 (Comp. St. Sec. 1019), provides as follows:
'If in any suit commenced in a District Court, or removed from a state court to a District Court of the United States, it shall appear to the satisfaction of the said District Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said District Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said District Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.'
But, as this was not done by the court below, it must be done by this court.
It does not follow, however, that because the District Court of the United States, as such, had no jurisdiction of this cause on account of the...
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