Kowalski v. Chi. & N. W. Ry. Co.

• Citation: 159 Minn. 388,199 N.W. 178
• Decision Date: 23 May 1924
• Docket Number: No. 23934.,23934.
• Court: Supreme Court of Minnesota (US)
• Parties: KOWALSKI v. CHICAGO & N. W. RY. CO.

159 Minn. 388

199 N.W. 178

KOWALSKI

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

No. 23934.

Supreme Court of Minnesota.

May 23, 1924.

Appeal from District Court, Lyon County; A. B. Gislason, Judge.

Action by Jack Kowalski against the Chicago & Northwestern Railway Company. Verdict for plaintiff, and, from order denying its motion that verdict be set aside and cause removed to United States District Court, and motion in alternative for judgment notwithstanding verdict or for a new trial, defendant appeals. Order denying motion for judgment notwithstanding verdict and order denying motion to vacate verdict and direct removal of cause to United States District Court affirmed, and order denying new trial reversed, and new trial granted, subject to entry of remittitur.

Syllabus by the Court

By following the course prescribed by statute, a defendant, entitled to remove a cause to the United States District Court, arrests the jurisdiction of the state court and effects a removal to the federal court. No action by the state court is necessary, although the usual practice is to enter an order of removal.

The jurisdiction of the state and federal courts of a cause of action arising under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) is concurrent. Removability of a case when commenced is determined by the allegations of the complaint. Voluntary subsequent action of the plaintiff may make the case removable, although it was not removable when commenced.

The right of removal must be asserted at the first opportunity, or it is waived. It was waived by defendant's failure to assert is when plaintiff rested without offering proof of his employment in interstate commerce at the time he was injured.

The drawbeams of a freight car, to which the drawbar is attached, are an integral part of the ‘automatic coupling’ apparatus required by the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.).

Defendant was not prejudiced by the submission to the jury of a question which must be resolved in plaintiff's favor as a matter of law.

A verbal inaccuracy in the statement of the falsus in uno rule, not called to the court's attention before the jury retired, is not ground for a reversal.

The damages awarded are excessive, and, unless respondent consents to a reduction to $10,000, a new trial is granted. Brown, Somsen & Sawyer, of Winona, and James H. Hall, of Marshall, for appellant.

Tom Davis, E. A. Michel, and R. M. Haines, all of Minneapolis, and Chas. L. De Reu, of Marshall, for respondent.

LEES, C.

Plaintiff brought this action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages for personal injuries sustained when a freight train upon which he was a brakeman broke in two. He obtained a verdict for $15,000, and defendant has appealed from an order (1) denying its motion that the verdict be set aside and the cause removed to the United States District Court, (2) denying its motion in the alternative for judgment notwithstanding the verdict or for a new trial.

1. The first portion of the order may not be appealable, St. Anthony, etc., Co. v. King, etc., Co., 23 Minn. 186, 23 Am. Rep. 682, but respondent has not raised the point, and we pass it by without considering it. If appellant had a right to remove the cause by pursuing the course prescribed by the statute, a removal was effected, and the jurisdiction of the court below was arrested. Roberts v. C., St. P., M. & O. Ry. Co., 48 Minn. 521, 51 N. W. 478;Ewert v. M. & St. L. R. Co., 128 Minn. 77, 150 N. W. 224, Ann. Cas 1916D, 1047. No action by the state court is necessary, but the usual practice is to enter an order of removal if, on examination, the petition and bond appear to be sufficient. Lee v. Cont. Ins. Co. (D. C.) 292 Fed. 408; Lewis, Removal of Causes, § 276.

[1] Respondent offered no proof of the allegation of the complaint that he was employed in interstate commerce when he was injured. At the close of the evidence his counsel admitted that fact, whereupon appellant presented a petition for removal on the ground of diversity of citizenship, accompanied by a proper bond, and asked the court to proceed no further with the trial, but the request was denied.

Under the federal Employers' Liability Act, the jurisdiction of the state and federal courts is concurrent, and, as the complaint was framed, the case was not originally removable. Miner v. C., B. & Q. Ry. Co., 147 Minn. 21, 179 N. W. 483. It was held in G. N. R. Co. v. Alexander, 246 U. S. 276, 38 Sup. Ct. 237, 62 L. Ed. 713, that, in the absence of a fraudulent purpose to defeat removal, the plaintiff may, by the allegations of his complaint, determine the status of a case arising under a law of the United States with respect to its removability, that this power continues with the plaintiff throughout the litigation, and that whether a case, nonremovable when commenced, afterwards becomes removable depends not upon what the defendant may allege or prove, or what the court may order, but solely upon the form which the plaintiff gives to the pleadings by his voluntary action as the case progresses towards a conclusion; and then this was said:

‘The plaintiff did not at any time admit that he had failed to prove the allegation that the deceased was employed in interstate commerce when injured * * * but, on the contrary, he has contended at every stage of the case and in his brief in this court still contends that the allegation was supported by the evidence.’

Here it was not contended that there was proof of respondent's employment in interstate commerce. That fact distinguishes this case from the Alexander Case, and probably justifies appellant's contention that it had a right to a removal notwithstanding the form respondent gave to his complaint.

But, if the right existed, it should have been asserted at the first opportunity. It is well settled that the right of removal may be waived by the acts or omissions of the party entitled to exercise it (Smithson v. C., G. W. Ry. Co., 71 Minn. 216, 73 N. W. 853; Lewis, Removal of Causes, § 36), and that it is waived if it is not exercised at the first opportunity (Powers v. C. & O. Ry. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673;Alexander v. G. N. Ry. Co., 51 Mont. 565, 154 Pac. 914, L. R. A. 1918E, 852;Id., 246 U. S. 276, 38 Sup. Ct. 237, 62 L. Ed. 713; Lewis, Removal of Causes, § 232). We are of the opinion that the first opportunity to assert it was presented when respondent rested without offering proof of his employment in interstate commerce. Without then asserting it, appellant proceeded to introduce evidence in support of its defense, and by so doing we think the right was waived. We cannot agree with the contention that, until the admission of respondent's counsel was obtained, there had been no voluntary retreat from or abandonment of the position respondent took in his complaint.

2. When the train separated, respondent was riding in the caboose. The automatic setting of the air brakes brought the rear portion of the train to a sudden stop, and respondent was thrown against the corner of a table and fell backward to the floor. It was discovered that one of the drawbeams under a car near the middle of the train had given way. There were two drawbeams bolted to the car, the drawbar being inserted in the space between them, with its inner end attached to a yoke and spring, fastened to the drawbeams. The only purpose they served was to hold the drawbar and the car together. If either of them gave way, the drawbar would drop out of place, and the car would separate from the one next to it, and could no longer be automatically coupled to it.

The court submitted the case to the jury on the theory that a showing had been made which would support a finding of a violation of the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.). Appellant asserts that this was wrong, because the act cannot be construed to apply to drawbeams.

The act declares that it shall be unlawful for a common carrier, engaged in interstate commerce by railroad, to haul a car used in moving interstate traffic unless it is equipped with...