Great Northern Ry Co v. Alexander

• Decision Date: 04 March 1918
• Docket Number: No. 130,130
• Citation: 62 L.Ed. 713,38 S.Ct. 237,246 U.S. 276
• Parties: GREAT NORTHERN RY. CO. v. ALEXANDER
• Court: U.S. Supreme Court

246 U.S. 276

38 S.Ct. 237

62 L.Ed. 713

GREAT NORTHERN RY. CO.

v ALEXANDER.

No. 130.

Argued Jan. 15, 1918.

Decided March 4, 1918.

Messrs. I. Parker Veazey, Jr., of Great Falls, Mont., and E. C. Lindley, of St. Paul, Minn., for plaintiff in error.

Mr. Cornelius B. Nolan, of Helena, Mont., for defendant in error.

Mr. Justice CLARKE delivered the opinion of the Court.

This case presents for decision the question whether the nonremovable case stated in the complaint became one subject to removal when the plaintiff rested his case, and, as the defendant claimed, it became apparent that the allegation of the complaint that the deceased was employed in interstate commerce when killed was not sustained by the evidence.

We shall designate the parties as they were in the trial court, the defendant in error as plaintiff and the plaintiff in error as defendant.

The suit was commenced in a district court of Montana and is one to recover damages for wrongful death. The plaintiff was a citizen of Montana when the case was commenced and he alleges in his complaint that the defendant was an interstate carrier, organized under the laws of the state of Minnesota at the time the accident occurred; that the deceased was a conductor employed by the defendant in interstate commerce at the time he was killed; and that the proximate cause of the accident was the failure of defendant to fence its line, which resulted in the derailing of the car on which plaintiff's decedent was employed, causing his instant death.

The defense is a denial that deceased was employed in interstate commerce when injured, and a denial of negligence in the failure to fence, with a plea of assumption of risk.

When the plaintiff rested his case the defendant 'moved for a judgment of nonsuit and dismissal upon the merits, * * * based upon the complaint of the plaintiff and upon the testimony adduced.'

This motion asserted in various forms that the evidence introduced failed to show any actionable negligence on the part of the defendant and concluded with a fifth paragraph, alleging, in substance, as follows:

That there was a fatal variance, amounting to failure of proof, between the allegation of the complaint that the deceased was employed in interstate commerce at the time he was injured and the evidence introduced; * * * that, this variance is substantial in that with the complaint charging that the deceased was killed while engaged in interstate commerce, the defendant could not remove said case to the federal court, whereas if the case as made by the proof had been made, to wit, an intrastate case, it could have been removed; and hence the failure to recognize the variance would operate to deny to the defendant a right under a statute or law of the United States, to wit, the right to remove such a case properly pleaded to the federal court.

The trial court having overruled this motion, the defendant introduced its evidence in defense and after the plaintiff's rebuttal was concluded renewed its motion, which was again denied, the defendant reserving its exception, and thereupon the case was submitted to the jury and judgment was entered on the verdict in favor of the plaintiff.

On review the Supreme Court of Montana (51 Mont. 565, 154 Pac. 914) held that the trial court had erred, and should have ruled that on the evidence adduced the deceased was not employed in interstate commerce when injured, but holding that the defendant had waived its right to remove by failing to file a petition for removal, as required by law, the court went forward and held, that a case of negligence at common law was stated in the complaint, and that the evidence introduced justified the trial court in submitting the case to the jury, and that the judgment must be affirmed.

In disposing of the question presented by this motion for 'nonsuit and dismissal' which we are considering, the Supreme Court of Montana said:

'We recall but one respect in which a defendant can be seriously prejudiced in such a situation, and that is where, by reason of diverse citizenship, removal of the cause to the federal court might be in order. In such a situation, however, the defendant must assert its right, under penalty of waiver, by filing a petition to remove at the first opportunity. * * * This the appellant did not do; instead, and with the knowledge of its right to have the cause removed, it submitted to the jurisdiction of the state court in which the trial occurred, by seeking a dismissal for variance as well as for failure to show the breach by it of any legal duty to the decedent under either state or federal law.'

No claim is made that the allegation that the plaintiff's decedent was employed in interstate commerce was incorporated into the complaint fraudulently or in bad faith, for the purpose of defeating the right of the defendant to remove the case to the federal court.

The claim now m de in this court by the defendant is that the state Supreme Court correctly held that the evidence introduced failed to show that the deceased was employed in interstate commerce when he was injured, but that it committed reversible error and denied to the defendant the federal right to remove the case when it held that the right to remove had been waived, and affirmed the judgment instead of reversing and remanding the case to the lower court for further proceedings.

The plaintiff replies to this claim with the contention that the court is without jurisdiction to review the decision of the state Supreme Court for the reason that no federal right was denied to the plaintiff in error at any stage of the proceeding in the state court.

It is, of course, familiar law that the right of removal being statutory, a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress. Gold Washing, etc., Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656; ...