Missouri Pacific Railroad Company v. Tompkins
| Decision Date | 29 January 1923 |
| Docket Number | 124 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY v. TOMPKINS |
| Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; George R. Haynie, Judge; reversed.
Judgment reversed, and cause remanded.
E B. Kinsworthy and R. E. Wiley, for appellant.
Appellant having in apt time filed a sufficient petition and bond for removal of the cause to the United States District Court, it should have been removed to that court. The fact that neither the plaintiff nor the defendant resided in the judicial district where the action was brought does not affect the removability of the cause. Ex parte Wisner, 203 U.S 449, on which this court has based its decisions contrary to the above contention, has been modified and partially overruled. 219 U.S. 363, 55 L. ed. 252; 209 U.S. 490, 52 L ed. 904; 210 U.S. 368, 52 L. ed. 1 And many of the Federal courts hold it is no longer an authority, and that these cases are removable. 218 F. 91; 224, 566; 251 F. 337; 222 F. 579; 244 U.S. 41; 205 F. 821; 211 F. 343. But the Supreme Court of the United States has recently settled this question favorably to appellant's contention. See General Investment Co. v. Lake Shore & Michigan R. Co., 43 S.Ct. 106.
R. P. Hamby, and Tompkins, McRae & Tompkins, for appellee.
The cause was not removable. The suit was brought outside of the Federal district in which the plaintiff resided. The defendant is a foreign corporation. 203 U.S. 449; 98 Ark. 507; 107 Ark. 512; 129 Ark. 550. The language of the Judicial Code, § 51, admits of no uncertainty on this point.
W. V. Tompkins, administrator of the estate of J. U. Brown, deceased, brought this suit against the Missouri Pacific Railroad Company to recover damages in the sum of $ 30,000 on account of his intestate being negligently killed by one of the defendant's trains.
On December 3, 1920, J. U. Brown, while driving his automobile across a public railroad crossing over the defendant's railroad in the city of Prescott, Ark., was struck by one of the defendant's passenger trains, with the result that the automobile was demolished and Brown was instantly killed. Brown left a widow and two minor children dependent upon him.
The case was tried before a jury in the Clark Circuit Court, and there was a verdict and judgment for the plaintiff in the sum of $ 7,500.
The Missouri Pacific Railroad Company duly filed its petition for removal of the action to the District Court of the United States, and as grounds therefor alleged that it was a corporation organized under the laws of the State of Missouri, with its general officers and principal place of business in the city of St. Louis, in said State.
The petition further alleged that the plaintiff is a citizen and resident of the State of Arkansas, and that the amount in controversy in this action exceeds $ 3,000, exclusive of interest and costs.
The petition further alleges that J. U. Brown was killed by one of the defendant's passenger trains while attempting to drive an automobile across a public street crossing in the city of Prescott, Ark., and that said accident happened without fault or carelessness on the part of the defendant.
The petitioner also filed its bond for the removal of the action, as required by law.
The Clark Circuit Court denied the petition of the defendant for the removal of the cause, and proceeded with its trial, with the result above stated.
The case is here on appeal.
If the cause was removable, the circuit court was without jurisdiction to proceed with the trial, and its judgment must be reversed for this reason, whether it might otherwise be sustained or not.
The ground of removal was the diverse citizenship of the parties. The petition for removal alleged that the plaintiff was a citizen of the State of Arkansas and the defendant was a corporation organized under the laws of the State of Missouri, and a citizen...
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