Davis v. Slocomb, 530

• Decision Date: 12 November 1923
• Docket Number: No. 530,530
• Citation: 68 L.Ed. 226,44 S.Ct. 59,263 U.S. 158
• Parties: DAVIS, Agent of the President, etc., v. SLOCOMB
• Court: U.S. Supreme Court

263 U.S. 158

44 S.Ct. 59

68 L.Ed. 226

DAVIS, Agent of the President, etc.,

v SLOCOMB.

No. 530.

Submitted on Motion to Dismiss Oct. 1, 1923.

Decided Nov. 12, 1923.

Mr. Arthur E. Griffin, of Seattle, Wash., for defendant in error.

Messrs. F. G. Dorety, of St. Paul, Minn., and Edwin C. Matthias, of Seattle, Wash., for plaintiff in error.

Mr. Justice BRANDEIS delivered the opinion of the Court.

This suit was brought in 1921 by a citizen of Washington in a court of that state to recover, under a state statute, for death caused by the negligence of the Great Northern Railway while under federal control. The government had surrendered possession February 28, 1920. The railway, a Minnesota corporation, and James Cox Davis, as Agent designated by the President pursuant to title 2, § 206a, of Transportation Act Feb. 28, 1920, c. 91, 41 Stat. 456, were made defendants. Removal to the federal court was prayed for, and granted, on the ground of diversity of citizenship and also on the ground that the suit was one arising under the laws of the United States. The District Court ordered that the suit be dismissed as against the railway; and later entered judgment against Davis. That judgment was affirmed by the Circuit Court of Appeals and is brought here by writ of error under section 241 of the Judicial Code (Comp. St. § 1218). Respondent moves to dismiss the writ of error on the ground that under section 128 (Comp. St. § 1120) the judgment below is final.

The cause of action for a death was created by state statute. But the case is one arising under the laws of the United States; for it is only by reason of the federal law that any suit may be brought against this defendant. Sonnentheil v. Moerlein Brewing Co., 172 U. S. 401, 404, 405, 19 Sup. Ct. 233, 43 L. Ed. 492; Matter of Dunn, 212 U. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558. The amount in controversy exceeds $1,000, besides costs. The ground of removal set out in the petition is both diversity of citizenship and that the case arises under federal law. It may, therefore, be brought here under section 241 (Southern Pacific Co. v. Stewart, 245 U. S. 359, 38 Sup. Ct. 130, 62 L. Ed. 345; Id., 245 U. S. 562, 38 Sup. Ct. 203, 62 L. Ed. 472), unless the case is one of those arising under federal law in which Congress has denied the right of removal to the federal court, and/or is one of those so arising in which the judgment of the Circuit Court of Appeals has been made final. The question presented is one of construction.

The right to sue the government for injuries arising under federal control rests on section 10 of the Federal Control Act of March 21, 1918, c. 25, 40 Stat. 451 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 3/4j), Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087. That section provides that 'actions at law * * * may be brought by and against such carriers * * * as now provided by law,' but that there shall not be 'transferred to a federal court any action * * *...