Lee v. Toledo, St. L. & W. Ry. Co.

• Decision Date: 13 February 1912
• Citation: 193 F. 685
• Parties: LEE v. TOLEDO, ST. L. & W. RY. CO.
• Court: U.S. District Court — Eastern District of Illinois

193 F. 685

LEE v. TOLEDO, ST. L. & W. RY. CO.

United States District Court, E.D. Illinois.

February 13, 1912

H. A Neal and S. S. Anderson, for plaintiff.

C. E Pope and H. M. Steely, for defendant.

WRIGHT District Judge.

This suit is brought under Employer's Liability Act April 22 1908, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 for causing the death of plaintiff's interstate, and now comes before the court upon the plaintiff's motion to remand to the state court. The cause was removed to this court from the state court upon the sole ground of diversity of citizenship, and the single point is made, in support of the motion to remand, that the amendment to the employer's liability act of date April 5, 1910, provides that no case arising under said act and brought in any state court of competent jurisdiction shall be removed to any court of the United States. And this is also contained in the new Judicial Code.

If the cause of action here had arisen in any other manner than under the employer's liability act, no doubt exists that the cause would be removable to this court because of the diversity of citizenship of the parties; but it has been argued that the amendment to which reference has been made has taken from every defendant right of removal for any cause, where the cause of action arises as this one does.

This identical question was before the court and decided in the case of Van Brimmer v. Texas & P. Ry. Co. (C.C.) 190 F. 394, and it was there held that Congress only intended to say, by the amendment of April 10, 1910, that the act alone should not give a defendant the right of removal of a cause of action brought originally in the state court, and that there was no intention to destroy or withhold the right of removal which a defendant might have by virtue of some other provision of the law. The reasoning of the court in that case is so apt and convincing that it cannot be well improved upon, and but for the subsequent legislation by Congress, contained in the Judicial Code of March 3, 1911, I would be disposed to adopt and apply the same in this case, and hold that Congress intended to prohibit only the removal of cases brought in a state court under the employer's liability act, because it is a law of the United States.

By section 28 of the Judicial Code of March 3, 1911, in force January 1, 1912, Congress have defined removable cases, and given the right to remove them to this court when brought in a state court of competent jurisdiction, and in the general definition of such cases the present case falls in two independent conditions, being a case at law arising under the laws of the United States, and also being between citizens of...