Miller v. Illinois Cent. R. Co.

• Decision Date: 10 April 1909
• Citation: 168 F. 982
• Parties: MILLER v. ILLINOIS CENT. R. CO.
• Court: U.S. District Court — Northern District of Georgia

168 F. 982

MILLER v. ILLINOIS CENT. R. CO.

United States Circuit Court, N.D. Georgia.

April 10, 1909

Burton Smith, for plaintiff.

Tye Peeples & Jordan, for defendant.

NEWMAN District Judge.

In the suit brought in the state court, which was removed into the Circuit Court by the defendant corporation, the petition or declaration is as follows:

'Georgia Fulton County.

To the City Court of Atlanta:

'The petition of Albert Miller shows the following facts:

'(1) The defendant is the Illinois Central Railroad Company, a railroad corporation with officers, agents, and a place of business in said county.

'(2) Defendant is a foreign corporation, and is not a resident or citizen of the state of Georgia.

'(3) Plaintiff is a citizen and resident of Tennessee.

'(4) Defendant has damaged petitioner in the sum of $10,000 by reason of the following facts: (Here follows a copy in full of the act of Congress of April 22, 1908, known as the 'Employer's Liability Act' (Act April 22, 1908, 35 Stat. 65, c. 149)).

'(6) On or about August 1, 1908, petitioner was in the employ of the defendant.

'(7) On said date, while in the employ of the defendant, he was injured at Dyersburg, Tenn.

'(8) The work in which petitioner was engaged was running a freight train, which train was running from one state into another and was engaged in interstate commerce.

'(9) Petitioner was employed by the defendant, a common carrier, in such commerce.

'(10) In the discharge of his duty petitioner was setting or throwing the switch at Dyersburg.

'(11) The lock on the switch was hard to handle, and it took some time to do this.

'(12) As soon as petitioner fixed the switch he turned toward the engine on which he was working, which had been a short distance from him; as petitioner turned, he found the engine right on him. The engine was backing, and the cab was nearly passed. Petitioner grabbed at the cab, was thrown under the engine, and his leg cut off. As petitioner saw he was falling, he halloed. The engineer paid no attention to him, and went on some 50 feet beyond him.

'(13) Defendant was negligent in that its engine advanced toward and upon petitioner before any signal was given by petitioner, and before any signal had been given that the engine was about to advance upon him.

'(14) Defendant was negligent in failing to stop its engine after petitioner had fallen.

'(15) Petitioner, as said engine approached him, found the engine right at him. It was his duty to go with said engine, and there was an emergency upon him.

'(16) Petitioner thought then, and thinks now, that he was more apt to be injured by not seeking to get upon said engine than seeking to get upon said engine.

'(17) Petitioner used all ordinary care at the time and place he could have used under the circumstances.

'(18) Petitioner's leg was cut off just below the knee.

'(19) Petitioner was about 27 years of age, and was earning from sixty to seventy dollars per month.

'(20) Petitioner's capacity to work and earn money has been destroyed.

'(21) Petitioner has suffered and will always suffer great mental and physical pain and anguish as a result of said injury.

'(22) The grabiron or handholds on the side of the engine were insecure, unsafe, and not properly constructed.

'(23) Petitioner brings this suit under the federal statute herein set forth, and relies solely upon the same for his recovery.

'Wherefore petitioner prays that process issue to the defendant requiring it to be and appear at the next term of this court to answer his complaint.'

The process attached to the declaration shows that the case was returnable to the city court of Atlanta on the 1st day of March, 1909. On that day the defendant appeared and filed its petition for removal to the Circuit Court of the United States for this district, properly verified, and accompanied by the bond necessary under the removal act. The petition for removal is as follows:

'Your petitioner, Illinois Central Railroad Company, appearing only for the purpose of this application, respectfully shows to this honorable court:

'(1) That it is defendant in this suit, which is of a civil nature, and that

the matter and amount in dispute in this case exceeds the value or sum of two thousand dollars, exclusive of interest and costs.

'(2) That the cause of action on which this suit is founded arises under the laws of the United States, under an act of Congress approved April 22, 1908, the title of said act being 'An act relating to the liability of common carriers by railroad to their employes, in certain cases.'

'(3) That this suit shows that petitioner is a common carrier engaged in interstate commerce, and that plaintiff was an employe of defendant, and above-entitled action is brought for the purpose of recovering from your petitioner the sum of ten thousand dollars damages on account of personal injuries received by plaintiff, while an employe of petitioner engaged in interstate commerce, on one of its cars.

'(4) Said complaint further shows that the determination of the liability of your petitioner to pay the damages complained of in the complaint, to wit, ten thousand dollars, depends upon the construction of the act of Congress of the United States above referred to, which act of Congress is set out in plaintiff's petition and made part of his complaint; that the defendant, your petitioner, will and does claim that, under and in pursuance of the provisions of said act of Congress, it is not liable to plaintiff in any sum whatever.

'(5) Your petitioner represents that the only question involved in this action arises out of and depends upon the construction to be given to the aforesaid act of Congress of the United States, and the decision of this case and of the issues arising herein between the plaintiff and the defendant depends upon the construction of the aforesaid laws of the United States as contained in the employer's liability act of Congress; and this suit arises wholly out of a controversy between the parties in regard to the operation and effect of the laws aforesaid upon the facts involved.

'(6) Your petitioner herewith presents a good and sufficient bond, as provided by the statute in such cases, that it will, on or before the first day of the ensuing session of the United States Circuit Court for the Northern District of Georgia, file therein a transcript of the record in this action, and for the payment of all costs which may be awarded by the said court, if the said Circuit Court shall hold that this suit was wrongfully removed thereto.

'Your petitioner, therefore, prays that this court proceed no further herein, except to make order of removal as required by law, and to accept the bond presented herewith, and direct a transcript of the record herein to be made for said court, as provided by law, and, as in duty bound, your petitioner will ever pray.'

It will be perceived that the ground for removal is that the cause of action on which the suit is founded arises under the laws of the United States; that is, under the employer's liability act of Congress approved April 22, 1908. The plaintiff has seasonably filed a motion to remand this case to the state court from which it was removed. This is the motion:

'Now comes the plaintiff in the above-stated case and shows to the court that there is no dispute or controversy as to the effect or construction of the Constitution or laws of the United States involved in said case, and that this was the only ground upon which said case was removed.

'Plaintiff, therefore, moves the court to remand said cause to the state court.'

Even if the petition for removal shows satisfactorily that the determination of this case depends upon the construction of the employer's liability act of Congress, and I do not think it does, that would be insufficient to justify the removal of the case on the ground that it is a case arising under the Constitution or laws of the United States. Since the decision by the Supreme Court in Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 Sup.Ct. 654, 38 L.Ed. 511, it is thoroughly settled that under the act of March 3, 1887, 24 Stat. 552, c. 373, as corrected by the act of August 13, 1888, 25 Stat. 433, c. 866 (U.S. Comp. St. 1901, p. 508), to justify a removal from the state court to the Circuit Court of the United States on the ground that the suit is one arising under the Constitution, laws, or treaties of the United States, it must so appear in the plaintiff's statement of his own claim. Under the act of 1875 (18 Stat. 470.c. 137 (U.S. Comp. St. 1901, p. 508)) it was held that if the fact that the case arose under the Constitution, or laws, or treaties of the United States appeared in the answer of the defendant, or the petition for removal, it was sufficient. Railway Company v. Mississippi, 102 U.S. 135, 26 L.Ed. 96; Ames v. Kansas, 111 U.S. 449, 4 Sup.Ct. 437, 28 L.Ed. 482; Brown v. Houston, 114 U.S. 622, 5 Sup.Ct. 1091, 29 L.Ed. 257; Provident Savings Society v. Ford, 114 U.S. 635, 5 Sup.Ct. 1104, 29 L.Ed. 261; Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113, 29 L.Ed. 319; Tennessee v. Whitworth, 117 U.S. 129, 6 Sup.Ct. 645, 29 L.Ed. 830; Southern Pacific Railroad Company v. California, 118 U.S. 109, 6 Sup.Ct. 993, 30 L.Ed. 103; Bock v. Perkins, 139 U.S. 628, 11 Sup.Ct. 677, 35 L.Ed. 314.

But even under the act of 1875 as to cases originally brought into the Circuit Court on the ground that the suit was one arising under the Constitution, laws, or treaties of the United States, it was necessary that it should appear to be such a case by the plaintiff's own statement of his claim. In the opinion by Mr. Justice Gray in Tennessee v Union & Planters' Bank, 152 U.S. 454, 14 Sup.Ct....