Danielson v. Donmopray, 2183.

• Decision Date: 02 April 1932
• Docket Number: No. 2183.,2183.
• Parties: DANIELSON v. DONMOPRAY et al.
• Court: U.S. District Court — District of Wyoming

57 F.2d 565 (1932)

DANIELSON v. DONMOPRAY et al.

No. 2183.

District Court, D. Wyoming.

April 2, 1932.

Albert D. Walton, H. S. Ridgely, and Ewing T. Kerr, all of Cheyenne, Wyo., for plaintiff.

William E. Hutton and B. B. McCay, both of Denver, Colo., and L. C. Sampson, of Cheyenne, Wyo., for defendants.

KENNEDY, District Judge.

This is a cause instituted in the state court seeking to recover damages growing out of the alleged negligence of the defendants in causing the death of plaintiff's intestate through an accident in which the defendant Roberts, at the special instance and request of the defendant Donmopray, was driving an automobile belonging to the latter, which accident occurred within the limits of the United States Military Reservation known as Ft. Francis E. Warren, in the state of Wyoming.

The case is before the court upon a motion to quash the summons and set aside the service thereof and also upon motion to dismiss the cause. As the motions are substantially addressed to the same point, they may, for the purposes of this memorandum, be considered together.

The facts upon which the motions are based are not in dispute. Within the time fixed by statute the defendants removed the case to this court upon the ground of diversity of citizenship, the appropriate amount in controversy being involved. The accident out of which the cause of action arose admittedly took place within the limits of the military reservation above mentioned. The summons was duly issued out of the state court and served upon the defendants within the limits of such reservation.

It is the contention of the defendants that, on account of the United States having exclusive jurisdiction over said reservation, neither the service of the summons at said reservation nor the cause of action growing out of an accident occurring within the limits of the reservation could be sustained in the state court, where the same was instituted.

It may be admitted that, if the state court had no jurisdiction over the controversy, this court has none by virtue of the removal. In Lambert Co. v. Balt. & Ohio R. R. Co., 258 U. S. 377, at page 382, 42 S. Ct. 349, 351, 66 L. Ed. 671, the court says: "The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction." Venner v. Mich. Cent. R. R. Co., 271 U. S. 127-131, 46 S. Ct. 444, 70 L. Ed. 868.

The specific bases upon which the defendants press their claim are provisions of the Wyoming statute and the Federal Constitution. Wyoming Revised Statutes 1931, § 118-105, provides: "Exclusive jurisdiction shall be, and the same is, hereby ceded to the United States over and with all the territory owned by the United States, included within the limits of the United States military reservations known as Fort Francis E. Warren and Fort Washakie, Camp Sheridan and Camp Pilot Butte, and the United States powder depot at Cheyenne, together with such other lands in the state as may be now, or hereafter, acquired or held by the United States for military purposes, either as additions to the posts above named, or as new military posts or reservations, which may be established for the common defense; saving, however, to the said state the right to serve civil or criminal process within the limits of the aforesaid forts, camps and depot, in suits or prosecutions for, or on account of rights acquired, obligations incurred or crimes committed in said state, but outside of said cession and reservation; and saving further to said state the right to tax persons and corporations, their franchises and property, on said lands hereby ceded."

The Constitution of the United States, article 1, § 8, clause 17 (relating to the powers of Congress), provides: "To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may be, by cession of particular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."

The point involved is suggested by that portion of the quoted statute embraced within the so-called saving clause by which the right is reserved to the state to serve criminal or civil process in suits or prosecutions on account of rights acquired, obligations incurred, or crimes committed in said state, but outside of said ceded portion, taken in connection with the provisions of the Federal Constitution of Congress exercising exclusive legislation and authority over the areas involved in the suit. The civil obligation having arisen inside of the ceded tract, it is claimed that the state court had no jurisdiction of the cause, and that no service could be made upon the defendants therein.

The statute above quoted became a law through the action of the Wyoming Legislature in 1893.

It is evident that the plaintiff's cause of action is based upon certain other provisions of the Wyoming statute. Its counterpart originated in the English Parliament, and was there known as Lord Campbell's Act. According to the opinion of the Supreme Court of Wyoming in Coliseum Motor Co. v. Hester, 3 P.(2d) 105, this statute was enacted into law by the territory of Wyoming in 1871. With the admission of the territory into the Union, the Wyoming Constitution, art. 10, § 4, provided that there should be no limit to the amount of damages to be recovered for causing the injury or death of any person, the territorial statutory provision having provided a limitation of $5,000. This limitation remained a part of the law after Wyoming became a state, despite the constitutional provision, until some time later when by legislative enactment it was removed, but the statute in other respects has remained substantially the same. This statute as now in force and effect is found in Wyoming Revised Statutes 1931, §§ 89-403 and 89-404, which read as follows:

"89-403. Whenever the death of a person shall be caused by wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not...