McLaughlin v. Western Union Telegraph Co.

• Decision Date: 09 July 1925
• Docket Number: No. 17953.,17953.
• Parties: McLAUGHLIN v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. District Court — Eastern District of Louisiana

7 F.2d 177 (1925)

McLAUGHLIN v. WESTERN UNION TELEGRAPH CO.

No. 17953.

District Court, E. D. Louisiana, New Orleans Division.

July 9, 1925.

Charles F. Borah, of Franklin, La., for plaintiff.

Esmond Phelps, of New Orleans, La., for defendant.

BEATTIE, District Judge.

Plaintiff brought suit in the state district court for the parish of St. Mary. Defendant duly obtained an order to remove same to this court on the ground of diversity of citizenship. Plaintiff thereupon appeared in this court and prayed that the suit be remanded to the district court for the parish of St. Mary.

The basis of this latter motion is that the plaintiff's cause of action is under the Workmen's Compensation Law of Louisiana (Act No. 20 of 1914), and that this law is not enforceable in any federal court, because the methods of enforcing that law are not adaptable to the machinery and methods used in this court.

In support of the motion to remand, the plaintiff further alleges that the defendant waived his right to remove this case from the state court by certain pleadings filed by the present defendant, in a suit by the plaintiff against the same defendant, on the same cause of action, in the United States District Court for the Northern District of Texas, in which pleadings plaintiff contends that the defendant averred that this cause of action could only be tried in the state court of St. Mary parish, La.; and plaintiff contends that, as a result of said pleading and contention, as made in the United States District Court in Texas, the plaintiff took a nonsuit, and thereafter filed this suit in the state court of Louisiana. Plaintiff contends that the defendant is estopped to assert the right to remove this case to this court by reason of the pleading filed in the United States District Court in Texas, wherein the nonsuit was taken.

The questions presented for decision involve questions of fact and of law. The questions of fact are: What pleading defendant filed in Texas, what judgment was rendered in Texas, and whether the judgment was rendered as a result of the plea by which the defendant is now sought to be estopped.

The question of law presented is whether or not — whatever may be the facts — the defendant can be estopped by his pleadings in Texas from obtaining an order to remove this case from the district court for St. Mary parish to this court.

The copy of the plaintiff's petition in Texas shows that it was in the alternative, claiming: First and primarily, damages for personal injury (that is, damages for a tort); second, and in the alternative, and in the event that it be found that he is mistaken in his claim for damages for tort, and in that event only, and as an alternative plea, he asked the court to establish his claim under the Workmen's Compensation Law of Louisiana.

The defendant filed in the Texas court a plea of abatement and a plea to the jurisdiction, alleging that at the time of the injury to plaintiff, he was working under and subject to the terms of said Compensation Law, and that he and the defendant were entitled to the privileges of said act, and subject to the requirements of said act any action brought by plaintiff against the defendant because of said injury "must have been brought and must be brought in the state of Louisiana, and subject to the terms and provisions of said" Compensation Law. Defendant further pleaded the statute of limitations as fixed by said Compensation Law.

To the other cause of action in plaintiff's petition, based upon tort, the defendant pleaded in the Texas court that the plaintiff was injured through no fault or negligence of the defendant, but solely through his own negligence and carelessness.

The judgment of the United States District Court in Texas was prefaced with a statement that all matters of fact and law were submitted, and that the court was of the opinion that the law was with the defendant, and that the plaintiff requested a nonsuit, and "it is therefore ordered, adjudged, and decreed by the court that the plaintiff, Thomas H. McLaughlin, be granted a nonsuit without prejudice herein, upon payment of all costs incurred herein for which execution may issue."

It will be noted that the judgment does not state whether or not it was based in any way upon the plea of the defendant that plaintiff's action, being based upon the Workmen's Compensation Law, could only be brought in the state of Louisiana.

Affidavits are submitted by the attorneys that represented the plaintiff and the defendant in Texas. Plaintiff's attorney swears that, before he knew or had reason to know what the court's decision would be, he requested the court to permit the plaintiff to take a nonsuit without prejudice, and this request was granted. He further says that at one time during the course of the trial the judge said substantially that he believed the plaintiff had been hurt and should be paid, but that he wanted to hear a discussion of the law, and particularly the law on the question of limitation, and thereupon some Louisiana decisions were read by the plaintiff's attorney, which seemed to satisfy the judge on the question of limitation in favor of plaintiff, and that later, before the judge had announced his decision, or made any remark as to what it would be, the affiant stated that there was some doubt in his mind as to whether or not he was in the right court, and thereupon asked for a nonsuit without prejudice, which was granted.

Affiant further says that it was after the taking of the nonsuit that the judge, just as he left the bench, stated that he was afraid he would have had to sustain the plea of limitation. Affiant further says that his reason for taking the nonsuit was not based upon anything the court said or indicated, but rather upon his conclusion that the interests of his client would be subserved in the state court of Louisiana, thus removing all question as to the jurisdiction of the court, and further, because of the pleadings filed and the contentions of the defendant, the case should and could only be filed in the state court of Louisiana. Affiant further says that the order entered in said cause was not prepared by him, and that the portion thereof, to the effect that "the court being of the opinion that the law is with the defendant," is not in line with the real facts, and that, if the court ever expressed an opinion in favor of the defendant, it was after the nonsuit was taken and not before.

On the other hand, defendant's counsel, in his affidavit, says that it was defendant's contention, under the Louisiana Compensation Law, that, if the federal court had jurisdiction at all, the judge could exercise such jurisdiction only in conformity with the provisions of the law, and must hear the case sitting, not in his usual capacity as a court, but sitting as an arbiter, and that it was ruled by the court that the federal court was a court of competent jurisdiction to hear the plaintiff's cause, but that, because of the provisions of the law, the judge must hear the suit sitting as an arbiter and not in his usual capacity as a court. Affiant further says that, subsequently to the above ruling, plaintiff amended his petition, and a hearing was granted thereon and held before the court sitting as an arbiter, in conformity with the Louisiana Compensation Law, and that a full hearing was had on the merits of the case, and that at the conclusion of the hearing, matters of law were presented, and defendant especially urged the plea of limitation, based upon section 31 of the Compensation Law, and that, upon the basis of the facts as presented and upon the law as urged, the judge indicated in open court that, because of the facts and the law, he would have to sustain the plea of limitation urged by the defendant, and that at this juncture, plaintiff's counsel requested the court not to enter such finding, but to permit him to take a nonsuit, and this request was granted.

From the above it appears that on the questions of fact involved, defendant, by its pleadings in the Texas federal court, did not specifically assert that the suit for the enforcement of the rights under the Louisiana Compensation Law had to be brought in the state court of Louisiana, but the assertion was simply the suit had to be brought in the state of Louisiana, subject to the terms and provisions of the Louisiana Compensation Law, and that the judgment of nonsuit did not state the basis thereof, and whether it was founded on the defendant's contentions that such a suit had to be brought in Louisiana. The affidavit of plaintiff's attorney in the Texas court does state, however, that among his reasons for taking the nonsuit in Texas was the nature of defendant's pleadings and contentions there that the case could only be filed in the state court of Louisiana.

The affidavits of the respective attorneys in Texas are contradictory as to the occurrences during the trial in Texas, and as to the grounds upon which the judge of the federal court in Texas indicated orally his views as to the rights of the parties were based. In view of these contradictory statements by the two attorneys, and as the judgment of the Texas court does not give any reasons, I think that the issue now presented in this case will have to be decided on the face of the pleadings and judgment, without regard to the conflicting affidavits of the two attorneys.

The question, therefore, is whether defendant is and can be estopped by its pleadings in Texas from obtaining an order of removal from the state court of Louisiana to this court.

While it may be that the defendant in Texas intended to assert by its pleadings that such a suit could only be brought in the state courts of Louisiana, the pleadings, as we have seen, assert only that it could be brought only in the state of Louisiana, without saying whether it should be in the federal court in Louisiana or in the state court of Louisiana. Can the defendant be...