Hall v. Illinois Central Railroad Company

• Decision Date: 20 June 1957
• Docket Number: Civ. A. No. 938.
• Citation: 152 F. Supp. 549
• Parties: B. Allie HALL, Administrator of the Estate of John Michael Edwards, Deceased, Plaintiff, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Western District of Kentucky

152 F. Supp. 549

B. Allie HALL, Administrator of the Estate of John Michael Edwards, Deceased, Plaintiff, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant.

Civ. A. No. 938.

United States District Court W. D. Kentucky, Paducah Division.

June 20, 1957.

M. C. Anderson, Wickliffe, Ky., Waller, Threlkeld, Whitlow & Byrd, Paducah, Ky., Barnett, Jones & Montgomery, Jackson, Miss., for plaintiff.

Wheeler & Marshall, Paducah, Ky., for defendant.

SHELBOURNE, Chief Judge.

This action is before the Court on the plaintiff's motion to remand, filed May 23, 1957. The complaint was filed in the Ballard Circuit Court on the 23rd day of February, 1957, against the Illinois Central Railroad Company.

Paragraph 3 of the complaint alleges that the action is brought under the Employers' Liability Act of the State of Kentucky, KRS 342.001 et seq., to recover for the wrongful death of John Michael Edwards, an unmarried man, who died February 29, 1956, while he was employed by the Illinois Central Railroad in intrastate commerce. The complaint quotes Section 277.310 of the Kentucky Revised Statutes, Section 241 of the Kentucky Constitution, and, in part, Section 411.130 of the Kentucky Revised Statutes.

It is alleged that the deceased was a lineman and, as a member of a crew, engaged in "clipping and removing unused telegraph wires mounted on crossarms attached to a line of poles near the Town of Wickliffe, Kentucky." It is alleged that the wires were not in use and had not been in use for a long time; that the line of poles near Wickliffe (on which the wires were strung) was partially submerged in the flood waters; that the crewmen were travelling by boat from pole to pole; that the boat furnished for the work was unsuited and overturned, causing the drowning of Edwards. The defects of the boat were described in detail, and knowledge of the defective boat is alleged to have been had by the defendant, together with knowledge that the boat as being used was heavily loaded by members of the crew with their equipment, and because of a powerful outboard motor, high winds, and choppy waters of the river the accident occurred and the deceased was drowned. Negligence is alleged on the part of the operator of the motor on the boat. Plaintiff alleges that the doctrine of res ipsa loquitur applies. It is alleged that the defendant failed to furnish deceased a reasonably safe place to work and reasonably safe appliances and boats in which to perform the work, and was otherwise negligent in causing its boats to be operated in an unsafe and imprudent manner while being overloaded.

The plaintiff then avers in the alternative that, if the deceased was not engaged in intrastate commerce, he was engaged in interstate commerce, and plaintiff invokes the provisions of the Federal Employers' Liability Act, Title 45 U.S.C.A. § 51 et seq. Then plaintiff alleges that, if neither the Employers' Liability Act of Kentucky nor the Federal Employers' Liability Act have application, he invokes remedies afforded him under the common law for negligence. It is claimed that the negligence of the defendant created liability under one or more of these alternatives.

Recovery is sought for the love, affection and companionship which the beneficiaries of the deceased's estate have lost, the support and contributions that deceased made to them, and the gratuities they would have received from him. They seek to recover funeral and burial expenses in a sum not exceeding $1,000, for the physical pain and suffering and mental anguish the deceased endured prior to his death, and for the destruction of his power to earn money. The prayer of the petition is that plaintiff have and recover "actual and punitive damages from the defendant in the sum of One Hundred Thousand Dollars ($100,000.00)."

March 14, 1957, defendant filed its petition and bond for removal of the action to this Court; removal is based on the diversity of citizenship.

March 19, 1957, defendant filed a written motion. Paragraph I seeks dismissal because no claim is stated upon which relief can be granted; Paragraph II moves that Paragraphs 4, 5, and 6 of the complaint be stricken; Paragraph III moves that Paragraphs 14, 15, 17, 18, and 19 be stricken; Paragraph IV moves that all of Paragraph 20, except the allegation as to the age of the decedent, be stricken. In support of Paragraph I of the motion, defendant says that the allegations of negligence are specific and are inconsistent and insufficient. As to Paragraph II of the motion, counsel states that this Court takes judicial notice of the statutes of Kentucky, and Paragraphs 4, 5, and 6 are unnecessary and are violative of Rule 8, Fed.Rules Civ.Proc., 28 U.S.C. As to Paragraph 14 of the complaint asked to be stricken by Paragraph III of the motion; defendant says that the doctrine of res ipsa loquitur cannot be invoked when specific negligence is alleged; as to Paragraph 15, that the allegations as to the legal duties of the defendant are surplusage and violative of Rule 8; and, as to Paragraph 17, that no facts are alleged in support of the attempted invocation of the provisions of the Federal Employers' Liability Act, and that the paragraph should be stricken in the interest of clarity and in order to enable the defendant to plead. Defendant's counsel says that Paragraphs 18 and 19 are surplusage and violative of Rule 8, and, finally, that all of the allegations of Paragraph 20 are improper and irrelevant, except as to the age of plaintiff's decedent.

March 29, the plaintiff filed his response to defendant's motion, also in paragraphs numbered I, II, III, and IV. Strangely enough, neither in the defendant's statement of grounds of his motion nor in plaintiff's response thereto is there a reference to any adjudicated case. Plaintiff, in Paragraph I of his response, says, "The complaint states a good cause of action," and then cites the provisions of the Kentucky Revised Statutes and the entire Federal Employers' Liability Act, Title 45 U.S.C.A. § 51 et seq., without further comment. Paragraphs II and III of the response submitted the paragraphs of the complaint referred to in Paragraphs II and III of defendant's motion without argument, and the concluding paragraph of his response is that "all facts alleged in the complaint have evidential value in support of plaintiff's allegations of negligence and violation of statutes which caused or contributed to the death of John Michael Edwards, * * *."

When the defendant's petition for removal was presented to the Court, together with an order reciting the steps taken by defendant pursuant to Section 1446 of Title 28 U.S.C.A., the order was signed by the Court without a careful examination of the complaint filed in the State court, copy of which was attached to the petition for removal. In examining the complaint more carefully, the Court is of the opinion that a serious question of jurisdiction presents itself. The plaintiff has alleged a cause of action under common law or under the wrongful death statute of Kentucky on the one hand, and an action under the Federal Employers' Liability Act on the other hand.

It is provided by Section 1445(a) of Title 28 U.S.C.A. that "A civil action in any State court against a railroad * *, arising under sections 51-60 of Title 45, may not be removed to any district court of the United States." A similar provision was originally a part of the Federal Employers' Liability Act. Rule 18 of the Rules of Civil Procedure permitted a plaintiff in his complaint to join either as an independent claim or as alternative claims as many claims, either legal or equitable or both, as he may have against his adversary. Hence, it was permissible for plaintiff to sue in the alternative for damages for the destruction of decedent's earning power and funeral expenses under the State law, and for pecuniary loss suffered by the beneficiaries in the death of the decedent. Assuming that the plaintiff has done or attempted to do this, the jurisdictional question arises: Does this Court have jurisdiction of the action?

It is provided by Section 1441(c) of Title 28 U.S.C.A., "Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

In the case of Patton v. Cincinnati, N. O. & T. P. Ry., D.C.Tenn., 208 F. 29, Judge Sanford, considering the effect of the prohibition against...