Givens v. Wight
| Decision Date | 04 January 1918 |
| Docket Number | 770. |
| Parties | GIVENS v. WIGHT et al. |
| Court | U.S. District Court — Northern District of Texas |
Randell & Randell, of Sherman, Tex., for plaintiff.
H. C Shropshire, of Weatherford, Tex., for defendants.
This action was commenced in the district court of Palo Pinto county, Tex. By timely petition and bond filed by defendants it was removed to this court, and plaintiff now moves to remand, 'on the ground and for the cause that this cause was improperly removed from said state court to this court and that this court is without jurisdiction to hear and determine the same. ' The defendants base their right of removal on an allegation of diversity of citizenship, which allegation is not controverted.
The suit is against the defendants, as receivers of the Texas & Pacific Railway Company, to recover damages for the death of plaintiff's intestate, W. W. Givens, whose death is alleged to have resulted from personal injuries received by him through the negligence of the defendants and their servants, while he was in the employ of the defendants, and while he was operating a train on said railway as a locomotive engineer; and plaintiff contends that notwithstanding diversity of citizenship, the case is not removable, because it arose under the Employers' Liability Act ( Act April 5, 1910, 36 Stat. 291, c. 143). Section 6 of said act, as amended, provides:
'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.'
And section 28 (chapter 3, 'District Court, Removal of Causes') of the Judicial Code of the United States (Act March 3, 1911, c. 231, 36 Stat. 1094), after providing for removal of causes, says:
'Provided, that no case arising under an act entitled 'An act relating to the liability of common carriers by railroad to their employes in certain cases,' approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction, shall be removed to any court of the United States.'
Construing these statutory provisions, it has been held in a number of cases that, as they are all-embracing in their language and specify no exceptions, cases arising under said Employers' Liability Act are not removable, even though they be cases of diverse citizenship. St. J. & G.I. Ry. Co. v. Moore, 243 U.S. 311, 37 Sup.Ct. 278, 61 L.Ed. 741; Southern Ry. Co. v. Lloyd, 239 U.S. 496, 36 Sup.Ct. 210, 60 L.Ed. 402; Southern Ry. Co. v. Leslie, 238 U.S. 599, 35 Sup.Ct. 844, 59 L.Ed. 1478; Teel v. C. & O. Ry., 204 F. 918, 123 C.C.A. 240, 47 L.R.A. (N.S.) 21; McChesney v. Illinois Central Ry. Co. (D.C.) 197 F. 85; Ullrich v. New York, N.H. & H.R. Co. (D.C.) 193 F. 768; Lee v. Toledo, St. L. & W. Ry. Co. (D.C.) 193 F. 685; Strauser v. Chicago, B. & Q. Ry. Co. (D.C.) 193 F. 293; Symond v. St. L. & S.E. Ry. Co. (C.C.) 192 F. 353; Hulac v. Chicago & N.W. Ry. Co. (D.C.) 194 F. 747. Now, if this case falls within the foregoing well-settled rule-- that is, if it is one arising exclusively under the Employers' Liability Act-- it should be remanded.
We must look alone to the plaintiff's petition to determine this question. That pleading, after describing the manner of the intestate's death and imputing same to the negligence of defendants and their servants, makes the following allegations:
'Plaintiff charges that the running of said train, and especially train No. 4, upon which deceased was engineer, was then and there for the transportation of passengers and goods in interstate commerce, in which defendants and deceased were then and there engaged at the time of deceased's injuries and death; and plaintiff sues under an act of the United States Congress entitled 'An act relating to the liability of common carriers by railroad to their employes in certain cases,' approved April 22, 1908, and the amendments thereto, for the exclusive benefit of the wife of the deceased, Nora Givens; and if plaintiff is mistaken as to defendants and deceased being engaged in interstate commerce at the time of his injuries and death, then plaintiff sues under the laws of the state of Texas for the sole and exclusive benefit of the surviving wife of deceased, the said Nora Givens, and...
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