Flas v. Illinois Cent. R. Co.

• Decision Date: 05 February 1916
• Docket Number: 425.
• Parties: FLAS v. ILLINOIS CENT. R. CO.
• Court: U.S. District Court — District of Nebraska

229 F. 319

FLAS v. ILLINOIS CENT. R. CO.

No. 425.

United States District Court, D. Nebraska, Omaha Division.

February 5, 1916

John W Battin, of Omaha, Neb., for plaintiff.

William Baird & Sons, of Omaha, Neb., and Helsell & Helsell, of Ft Dodge, Iowa, for defendant.

MUNGER District Judge.

Plaintiff brought an action in the state court for personal injuries sustained by him, and his petition contained two counts. The first count sets forth a cause of action under the Employers' Liability Act of Congress (35 Stat. 66; 36 Stat. 291), and the second count sets forth a cause of action arising under the common law and state statutes, but the subject of each count is the same injury. The statutes of this state permit two such causes of action to be joined in the petition. Section 7657, Rev. Stats. Neb. 1913.

A petition for removal was filed, and the cause is now presented on a motion to remand the case. Each count of the petition sets forth a cause of action of which this court would have jurisdiction, if a suit had been begun in this court by a petition setting forth the facts relied upon in that count. The suit is therefore removable to this court unless forbidden by section 6 of the Employers' Liability Act, which provides that:

'No case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.' The 'case' referred to is what plaintiff makes it, in good faith, by his petition. Mountain View Min. & Mill. Co. v. McFadden, 180 U.S. 533, 21 Sup.Ct. 488, 45 L.Ed. 656; Minnesota v. Northern Securities Co., 194 U.S. 48, 24 Sup.Ct. 598, 48 L.Ed. 870; Cella v. Brown, 144 F. 742, 75 C.C.A. 608. Because his good faith is presumed, it has been held that a single count, which states facts sufficient to make a case either under the act of Congress or under the state statutes and common law, states a case arising under the act of Congress. Ullrich v. New York, N.H. & H.R. Co. (D.C.) 193 F. 768; Rice v. Boston & M.R.R. (D.C.) 203 F. 580.

In the pending case, the plaintiff's petition announces his intention to proceed either under the act of Congress or independently of it, as he elects. The action, therefore cannot be said to arise under the Employers' Liability Act, for but a portion of it so arises. This would be entirely clear, had plaintiff joined in his petition, as he is permitted to do by the Nebraska statute, causes of action...