Frazier v. Hines

• Decision Date: 30 May 1919
• Docket Number: 142.
• Parties: FRAZIER v. HINES, Director General of Railroads.
• Court: U.S. Court of Appeals — Fourth Circuit

260 F. 874

FRAZIER v. HINES, Director General of Railroads.

No. 142.

United States District Court, E.D. South Carolina.

May 30, 1919

[Copyrighted Material Omitted]

H Klugh Purdy, of Ridgeland, S.C., and Logan & Grace, of Charleston, S.C., for plaintiff.

W Huger Fitz Simons, of Charleston, S.C., for defendant.

SMITH District Judge.

A motion has been made in this case, after due notice, to permit the defendant to amend both the petition for removal and the answer herein, and counsel on both sides have appeared and been heard.

It appears from the record that the plaintiff, on the 10th day of March, 1919, commenced an action in the court of common pleas for Jasper county, in the state of South Carolina, against the defendant, to recover damages for an alleged personal injury committed by the negligence of the employes of the defendant. Thereafter, and within the time allowed by law, the defendant filed his petition and bond in the state court, for the removal of the cause to this court, on the ground that the action is a controversy between citizens of different states. Thereupon notice was given by the defendant to plaintiff that he had filed his petition and bond for removal, and would apply to the state court for an order removing the cause as provided by law, and an exemplified copy of the record in the state court has been filed in due time in this cause.

The defendant thereafter served and filed in this court his answer to the complaint, and now makes this motion to be allowed to amend both the petition for removal and the answer, by inserting therein an allegation that the plaintiff, Wesley Frazier, on September 27, 1918, at the time of the alleged injury, was not an employe of defendant, but at that time was in the employ of W. Z. Williams Contracting Company, Incorporated. No order has been obtained from the state court removing the cause, nor has any application yet been made to that court for such an order.

The first question suggested is that this court will not consider any motion in the cause until an application has been made to the state court for an order to remove it to this court. Such has been, in a general way, the practice of this court, in removal cases, for many years. The general rule of law, however, is undoubtedly that if the case be a removable one, the mere filing of the bond and petition in the state court removes the case. Traction Co. v. Mining Co., 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462; Iowa Cent. Ry. v. Bacon, 236 U.S. 310, 35 Sup.Ct. 357, 59 L.Ed. 591.

It is the duty of the state court to thereupon accept the petition and bond, and proceed no more in the cause. Whether, however, the state court accepts the petition and bond, or whether it grants or denies an order for removal, does not affect the fact of removal. The cause is removed, if it be a removable cause, although the state court may refuse to grant an order of removal. Donovan v. Wells Fargo & Co., 169 F. 363, 94 C.C.A. 609, 22 L.R.A.(N.S.) 1250; Chesapeake & Ohio Ry. v. McCabe, 213 U.S. 207, 29 Sup.Ct. 420, 53 L.Ed. 765.

Under such rule, the requirement of the submission of the matter to the state court for an order of removal before any action is taken by this court is a mere matter of comity or curtesy, and not a matter of right; and if the case presented is one in which some action should be taken, and in the opinion of this court it has been properly removed, it is the duty of this court to take action upon the application, whether the state court has granted, or refused an order of removal, or whether or not any application for such an order has actually been made to it.

Further, it is to be observed that the practice requiring application to the state court, and the decisions made thereunder, are very much affected by the requirement of the Judicial Code of 1911, Sec. 29 (Act March 3, 1911, c. 231, 36 Stat. 1095 (Comp. St. Sec. 1011)), which prescribes that written notice of the petition and bond for removal shall be given the adverse party or parties (not the state court) prior to filing the same. This written notice appears to have been given in the present cause, and under the terms of the statute it would not appear that any further notice or application to the state court is required, either as a matter of law or comity, but any proper action in the cause should be taken by this court, without regard to any action of the state court. Hansford v. Stone-Ordean-Wells Co. (D.C.) 201 F. 185; Cropsey v. Sun Printing & Publishing Ass'n (D.C.) 215 F. 132.

The next question is whether an application of the character now made to amend the petition for removal should be granted. An inspection of the record shows that the amendment sought to the petition is a very substantial one. The theory of the amendment proposed is that the complaint in the state court is brought to obtain a recovery under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. Sec. 8657-8665)), and to obtain the benefit of that act; and the amendment now sought is one to introduce a new allegation of fact in the petition for removal filed in the state court to the effect that the party plaintiff was not an employe of the defendant and therefore not an employe within the terms of the federal statute, and as such not entitled to the benefit of that statute, and the cause of action being between citizens of different states, the action is not within the inhibition of that statute, which forbids the removal from the state court of actions brought under that statute.

This would be an amendment of a substantial character, as interposing an allegation of fact denying an allegation in the complaint, which on the face it is apprehended will defeat a removal. The original petition for removal placed the ground for removal upon the sole fact that the plaintiff and defendant were citizens of different states. This amendment proposes to introduce an allegation of fact which is matter of defense on the merits, to wit, that the plaintiff was not an employe of the defendant, and therefore not entitled to claim the benefit of the federal Employers' Liability Act, and not being entitled to sue in that capacity, the cause could be removed.

The rule as to amendments to petitions for removal is that these amendments may be permitted in this court to a petition filed for removal in the state court, where the amendment is one to cure technical defects or to amplify the allegations of the petition for removal; that is to say, where the amendment does not more than set forth in proper form what has been before imperfectly stated in the petition. Carson v. Dunham, 121 U.S. 421, 7 Sup.Ct. 1030, 30 L.Ed. 992; Kinney v. Columbia Savings & Loan Ass'n, 191 U.S. 78, 24 Sup.Ct. 30, 48 L.Ed. 103. The rule may be said to be summed up in the case of Southern Pacific Co. v. Stewart, 245 U.S. 359, 38 Sup.Ct. 130, 62 L.Ed. 345, that amendments have been permitted so as to make allegations of the removal petition more accurate and certain, when the amendment is intended to set forth in proper form the ground of removal already imperfectly stated.

The amendment as proposed to the petition for removal would affirm the ground stated in the petition for granting the removal, by showing that the cause is not within the terms of the federal statute, by a traverse of the fact alleged in the complaint (if it be therein sufficiently alleged) that the plaintiff was an employe of the defendant.

The defendant's position is that this makes the removability of the cause depend upon a question of fact, which must be determined in this court; and the rule is that, when the right of removal depends upon the existence of certain facts, they must be determined by the federal court, which alone can determine controverted issues of fact on which the right to removal depends. It is the duty of the state court, in such cases, to defer all action until such issues have been passed upon by the federal court. The state court must accept as true all allegations of fact in the petition for removal. Kansas City R.R. v. Daughtry, 138 U.S. 298, 11 Sup.Ct. 306, 34 L.Ed. 963; Chesapeake & Ohio R.R. v. McCabe, 213 U.S. 207, 29 Sup.Ct. 430, 53 L.Ed. 765; Texas & Pacific Ry. v. Eastin, 214 U.S. 153, 29 Sup.Ct. 564, 53 L.Ed. 946; Chesapeake & Ohio Ry. v. Cockrell, 232 U.S. 146, 34 Sup.Ct. 278, 58 L.Ed. 544.

After a case has been adjudged by the federal court to have been properly removed, or where the question of removal may depend upon issues to be determined solely in that court, the federal court may protect its jurisdiction by enjoining any further proceedings in the state court. Traction Co. v. Mining Co., 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462; Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 34 Sup.Ct. 278, 58 L.Ed. 544; Chesapeake & Ohio Ry. Co. v. McCabe, 213 U.S. 207, 29 Sup.Ct. 430, 53 L.Ed. 765; Donovan v. Wells Fargo & Co., 169 F. 366, 94 C.C.A. 609, 22 L.R.A. (N.S.) 1250; Alabama Great Southern Ry. v. American Cotton Oil Co., 229 F. 11, 143 C.C.A. 313.

But the issue of fact the proposed amendment seeks to import goes to the merits of the defense as well as to the right of removal. It would amount in effect to this court determining in advance of the trial on the merits before a jury that the plaintiff was not an employe of the defendant, and not entitled to the benefits of the federal Employers' Liability Act.

The very question came up in the case of Southern Railway v Lloyd, 239 U.S. 496, 36 L.Ed. 210, 60 L.Ed. 402. There the complaint was brought for a recovery under the federal Employers' Liability Act. The defendant sought to remove on the ground of diversity of citizenship, and, to avoid the inhibition of the act...