Jones v. Southern Ry. Co.

• Citation: 236 F. 584
• Decision Date: 24 October 1916
• Docket Number: 245.
• Parties: JONES v. SOUTHERN RY. CO.
• Court: U.S. District Court — Northern District of Georgia

236 F. 584

JONES v. SOUTHERN RY. CO.

No. 245.

United States District Court, N.D. Georgia.

October 24, 1916

Reuben R. Arnold, Hal Lindsay, and Troutman & Troutman, all of Atlanta, Ga., for plaintiff.

McDaniel & Black and Edgar A. Neely, all of Atlanta, Ga., for defendant.

NEWMAN District Judge.

This is a motion to remand. The case was removed from the superior court of Fulton county, Ga., by the defendant, the Southern Railway Company. The suit is brought by an employe for personal injuries alleged to have been received by him while in the discharge of his duties as switchman in the defendant's yards in this state and county.

There are two counts in the declaration. The first count concludes by saying:

'This cause of action is based upon and brought under the laws of the state of Georgia in such cases provided.'

In this first count, however, which is brought under the state law it is alleged that the defendant is--

'a common carrier by rail, doing business and operating within and through said state and county, and engaged in interstate commerce in said business.' It is further alleged in this count that:

'At the time said injuries were inflicted upon petitioner by defendant, as hereinafter set out, said car with the defective pin lifter was being used by defendant in connection with its business, and on its railroad tracks which are a part of its highway of interstate commerce, over which defendant hauls and carries commodities and passengers to and from one state and another.'

The second count in the declaration is brought clearly and in terms under the Employers' Liability Act of Congress. It is therein alleged that:

'Defendant is a common carrier by rail, doing business and operating within and through said state and county, and engaged in interstate commerce in said business.'

And further that:

'At the time petitioner was in the performance of his duties about said cars as aforesaid, said cars were being used and handled by defendant on its tracks and lines which are a part of its highway of interstate commerce, over which defendant hauls and carries commodities and passengers to and from one state and another, as a common carrier by rail.'

There are other allegations to the same effect, but undoubtedly the cause of action stated in the second count in the declaration is under the Employers' Liability Act of April 22, 1908 (35 Stat. 66), as amended April 5, 1910 (36 Stat. 291).

Cases brought in the state courts under this Employers' Liability Act are not removable. The amendment of April 5, 1910 (Comp. St. 1913, Sec. 8662), supra, provides that:

'The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no (cause of action) 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 a motion to remand on the ground that this case is brought under the Employers' Liability Act of Congress and consequently is not removable.

The question involved here has been before the District Courts several times. The first case directly and squarely in point was the case of Ullrich v. New York, N.H. & H.R. Co., 193 F. 768. The opinion in this case is by District Judge Hand, of the Southern District of New York, and at the end of the opinion it is stated that:

'District Judges Holt and Hough have both read the foregoing opinion and agree with the conclusion reached.'

Perhaps the headnotes will state in sufficient detail what was decided in the opinion. They are as follows:

'Employers' Liability Act, Sec. 6, provides that an action may be brought for injuries to, or death of, employes within such act in a Circuit Court of the United States in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing the action, but that the jurisdiction of the courts of the United States shall be concurrent with those of the several states, and no case arising under the act and brought in any state court of competent jurisdiction shall be removed to any court of the United States. Held that, where an action under such statute is brought in a state court, it is not removable in spite of the diversity of citizenship of the parties.

'Where the facts pleaded in the complaint in an action for death of a servant showed a cause of action under Employers' Liability Act, Sec. 6, and also a cause of action under Labor Law N.Y. (Consol. Laws 1909, c. 31) Sec. 200 et seq., and a cause of action at common law, it was nevertheless a 'cause arising' under the Employers' Liability Act, and, having been brought in the state court, was not removable as provided by Employers' Liability Act, Sec. 6, notwithstanding the existence of diversity of citizenship, and the fact that, if it had stated a cause of action at common law or under the New York statute, it would have been removable.'

The second case is decided by Judge Ray of the Northern District of New York. His ruling agrees with that of Judge Hand, and after stating his reasons, which appear in the opinion, he granted a motion to remand. Rice v. Boston & M.R.R., 203 F. 580. Though there were no definite counts in the case before him, it was one which stated, as I understand it, three causes of action, one under the federal act, one under the common law, and one under a Massachusetts statute.

Another case was decided by Judge Ray in the Northern District of New York. Peek v. Boston & M.R.R., 223 F. 448. In the decision in this later case Judge Ray says:

'If this complaint contains two causes of action, one under the federal Employers' Liability Act and one under the state law, the federal Employers' Liability Act controls, as both plaintiff and defendant were engaged in interstate commerce, and, Congress having legislated on the subject, the federal statute is paramount. The federal statute controls the liability and right of recovery'-- referring to several authorities, among them Seaboard Air Line v. Horton, 233 U.S. 492, 34 Sup.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475.

The cases taking the contrary view of this law are, first, the case of Strother v. Union Pac. R. Co. (D.C.) 220 F. 731, decided by District Judge Van Valkenburgh of the Western District of Missouri. The ruling in this case, quoting the headnotes, is:

'Within Employers' Liability Act April 22, 1908, c. 149, Sec. 6, 35 Stat. 66, as amended by Act April 5, 1910, c. 143, Sec. 1, 36 Stat. 291 (Comp. St. 1913, Sec. 8662), providing that no case arising under that act and brought in any state court shall be removed to any court of the United States, 'case' means cause of action; and this is true, though the petition in the same count states facts disclosing a good cause of action under a state statute or at common law.

'Under Employers' Liability Act, Sec. 6, where a petition contained two counts stating causes of action under that act and under the state law for the death of an employe, and the necessary diversity of citizenship existed to make the cause of action under the state law removable, defendant could remove such cause of action, without waiting until plaintiff elected at the trial to rely on the cause of action under the state law, and such removal carried the entire case with it, as the provision against removal of causes under the Employers' Liability Act is a privilege which plaintiff may waive, and defendant could not be deprived of its right to remove the cause of action under the state law by the joinder of the irremovable cause of action.

'Where the right to remove a case which has been removed to the federal court is

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