Erie R. Co. v. Kennedy

• Decision Date: 07 November 1911
• Docket Number: 2,124.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: ERIE R. CO. v. KENNEDY.

191 F. 332

ERIE R. CO. v. KENNEDY.

No. 2,124.

United States Court of Appeals, Sixth Circuit.

November 7, 1911

W. E Cushing (Cushing, Siddall & Palmer, on the brief), for plaintiff in error.

R. B Newcomb and F. M. Cobb (Skiles, Green & Skiles and R. B. & A. G. Newcomb, on the brief), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

Kennedy was a yard brakeman for the Erie Railroad Company, at Cleveland. He was injured while handling his brake in the process of unloading a car of coal through an unloading machine, and brought this action, alleging that the unloading machine and the brake were negligently permitted to be in unsafe condition and that his injury resulted from such negligence. He recovered a judgment, and the railroad company brings error.

We name the parties as they were below. The appellant presents two questions only: (1) Should the suit have failed, because brought in the wrong forum? and (2) was the court right in its action with regard to a specific piece of evidence?

The question of forum arises in this way: The plaintiff's petition described generally the right of action alleged, and did not specify any reliance upon the Ohio statute (General Code, Sec. 9017) fixing the rules of assumed risk, safe place to work, contributory negligence, and fellow servants; nor did it count upon the federal statute regulating the same subject-matters, when arising in interstate commerce (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1909, p. 1171)). The defendant's plea put in issue the negligence alleged in the petition, and added this clause:

'Defendant further says that it, is, and at all times mentioned in said amended petition was, a common carrier by rail, and that in the dumping of said car, and in all things done with reference to said car, from said dumping up to and including the time of the occurrence of said injury to plaintiff, defendant was engaged in commerce between the several states of the United States of America, and that plaintiff suffered his said injury while he was employed by defendant in such commerce.'

Excepting as should be implied from the paragraph just quoted, defendant did not question the jurisdiction over it or over the subject-matter, and the case regularly came on for trial on its merits. Upon the trial, it appeared without dispute that the coal which, at the time of the accident, had just been emptied from the car, was in transit from Pennsylvania to Wisconsin, and that the unloading was in connection with the transshipment from car to boat incidental to such through shipment. At the close of the testimony and after the argument to the jury, this occurred:

'The Court: Is there any controversy between you gentlemen as to whether or not this case falls within the federal liability act?

'Defendant's Attorney: We think it does not, because the petition does not bring it.

'The Court: You insist that it does?

'Plaintiff's Attorney: We insist that it does, and, if the court would say that it does not, it falls under the law of Ohio.'

The defendant also requested an instructed verdict.

The court then submitted the case to the jury upon the theory that the action was being prosecuted under the federal law, and gave to the jury the rules of assumed risk, fellow servant and comparative negligence established by that act. The defendant excepted to the refusal to instruct a verdict, and excepted to those portions of the charge which applied the act of Congress.

In this court, the railroad company insists that the petition must be treated as alleging only a common-law liability, or a liability under the Ohio statute, and that the testimony showed only a case arising under the federal statute; that there was a variance between the petition and the proofs; and that defendant was prejudiced by the action of the court, because, if the suit had been properly planted upon the federal statute, the defendant, under the state of the law existing at that time (Newell v. B. & O.R.R. Co. (C.C.) 181 F. 698), would have been entitled to insist that it could be sued only in the district of which it was an inhabitant-- which, in this case, is in New York.

We do not find it necessary to consider what would have been the result if defendant had seasonably raised this question of jurisdiction over its person. Under the familiar rule, that objection is waived unless raised at the first opportunity calling for election between insisting on the objection or taking inconsistent action (In re Moore, 209 U.S. 490, 496, 501, 28 Sup.Ct. 585, 706, 52 L.Ed. 904; L. & N.R.R. Co. v. Fisher (C.C.A. 6) 155 F. 68, 83 C.C.A. 584, 11 L.R.A.(N.S.) 926), and we are called upon to apply this rule of waiver. The defendant says the opportunity never came, because the petition never was amended so as to state this theory of liability. We think what did occur amounted to a waiver. The act of the court in proceeding to submit the case to the jury on the theory that it was under the federal statute was equivalent to holding either that the petition was sufficient to support such a theory, or that the petition should be treated as, in this respect, amended, and that such amendment, being, so far as appeared to the court, a mere formality, did not require entry of record. Pennsylvania Co. v. Whitney (C.C.A. 6) 169 F. 572, 578, 95 C.C.A. 70.

In neither view was defendant prejudiced by thus proceeding with the case, unless it had a right to a trial in New York instead of in Ohio; and the claim of this right was never, in any manner, at any time, brought to the attention of the court below. If, at any time before the final submission defendant had intimated its claim that, as the trial had developed, and as the case was being submitted, it was being sued in the wrong district, the court would have dealt with this claim in such manner as might have seemed proper. The opportunity and duty to raise the question of right or wrong district came as soon as it appeared that the trial was in fact proceeding upon the theory, and that the submission to the jury was to be upon the theory, that the case was one under the federal statute. If this territorial objection had been properly taken, and had been sustained, the utmost result would have been a dismissal of the action without prejudice; while the course pursued by defendant was adapted to compel a directed verdict-- a...