Hulac v. Chicago & N.W. Ry. Co.

• Citation: 194 F. 747
• Decision Date: 16 March 1912
• Docket Number: 17.
• Parties: HULAC v. CHICAGO & N.W. RY. CO.
• Court: U.S. District Court — District of Nebraska

194 F. 747

HULAC v. CHICAGO & N.W. RY. CO.

No. 17.

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

March 16, 1912

M. F Harrington, for plaintiff.

B. H Dunham and Herman Aye, for defendant.

THOMAS C. MUNGER, District Judge.

This action was brought in the state court to recover for personal injuries, and is one that arose under section 6 of the act of Congress commonly called the 'Employer's Liability Act,' approved April 22, 1908 (Act April 22, 1908, c 149, 35 Stat. 66 (U.S. Comp. St. Supp. 1909, p. 1173)), and amended by the act approved April 5, 1910 (36 Stat. 291, c 143). The case was removed to this court on a petition alleging diversity of citizenship, and the plaintiff has moved to remand.

The cause of action arose before, but the action was begun after the taking effect of the federal Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087). The defendant railway company claims that the prohibition against removal found at the close of section 28 of the Judicial Code does not apply to this case, because of the saving provision in section 299 of the Code, and further claims that the removal of the case is not forbidden by section 6 of the amendatory act above referred to, because Congress intended thereby to prevent removals only on the ground that the action arose under a law of the United States, and the case of Van Brimmer v. Texas & P. Ry. Co. (C.C.) 190 F. 394, is cited as sustaining this contention. I am unable to agree to the result reached in that decision.

The language of the act prohibiting the removal of such cases is clear and sweeping. It reads:

'And 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.'

There is no suggestion in the words thus used that a removal is forbidden only because the action arises under a law of the United States. The prohibitory clause was added as an amendment in the Senate of the United States, and accepted with very little debate. It is not conceivable that Congress did not understand the full import of the words of the amendment, and that no exception was expressed. That Congress did intend to forbid the removal of cases arising under the Employer's Liability Act, upon any ground, appears from the fact that the same Congress, at the following session, again forbade the removal of cases in section 28 of the Judicial Code, and this was by an amendment immediately following the re-enactment and codification of the law covering the whole subject of the right of removal.

It is a well-recognized fact in judicial history that plaintiffs, in actions brought by employes against railway companies for damages resulting from personal injuries, have quite generally and for many years sought to bring and retain their actions in the state courts, and...