Mitchell v. Southern Ry. Co.

• Decision Date: 12 October 1917
• Docket Number: 246.
• Citation: 247 F. 819
• Parties: MITCHELL v. SOUTHERN RY. CO.
• Court: U.S. District Court — Northern District of Georgia

247 F. 819

MITCHELL v. SOUTHERN RY. CO.

No. 246.

United States District Court, N.D. Georgia.

October 12, 1917

Colquitt & Conyers, of Atlanta, Ga., for plaintiff.

McDaniel & Black, of Atlanta, Ga., for defendant.

NEWMAN District Judge.

This case was removed to this court from the state court on the ground of diversity of citizenship; the defendant being a corporation, citizen, and resident of the state of Virginia, and the plaintiff a citizen of the state of Georgia and a resident of this district. The case has been tried in this court in June, 1917, and there was a mistrial on June 14, 1914.

The declaration contains four counts, two counts for liability under the Employers' Liability Act and two for liability under the state laws. The case was tried without the determination by the court as to which counts were controlling as the case went to the jury, or the counts under which the case should be submitted; but the instructions of the court appear to have been such that the case was treated as submitted under the law of the state controlling liability for damages to railroad employes.

A motion is now made to remand the case to the state court from which it was removed, on the ground that, under the decisions heretofore made by this court and other courts, it was a nonremovable case. In Jones v. Southern Ry. Co (D.C.) 236 F. 584, I think what was determined can be gathered from the headnote of the case, which is as follows:

'Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 66, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 (Comp Stat. 1913, Secs. 8657-8665), providing that no cause of action arising under this act and brought in a state court shall be removed to a federal court, applies where, under the facts alleged, such act must control in the case, though in addition to the count in terms under such act is one concluding that the cause of action is based on and brought under the laws of the state.'

This case is recognized now, I think, by all concerned, as the law controlling in this matter, certainly in this district. The real question here is whether what has occurred in this case since its removal prohibits its remand to the state court. It is contended by the plaintiff that, although on the trial here in June the case seems to have gone to the jury under the state law, and not under the Employers' Liability Act, that should not control on a question of removal, but instead what is stated in the plaintiff's declaration.

In the case of Patton v. Cincinnati, N.O. & T.P. Ry. (D.C.) 208 F. 29, a case in the Eastern district of Tennessee, Judge Sanford, District Judge there, determined that the right to remove was, under the Employers' Liability Act, jurisdictional, and that the right of removal could not be waived by the plaintiff. Judge Sanford determined in that case:

'(1) A case arising under the Employers' Liability Act and brought in a state court of competent jurisdiction is not removable to a federal District Court, even although the case would be otherwise removable by reason of diversity of citizenship or other independent ground of removal. Teel v. Railway Co. (U.S. circ. Ct. App., 6th Circ., May 6, 1913) 204 F. 918 (123 C.C.A. 210); Symonds v. Railway Co. (C.C.) 192 F. 353; Strauser v. Railroad Co. (D.C.) 193 F. 293; Lee v. Railway Co. (D.C.) 193 F. 685; Ullrich v. Railroad Co. (D.C.) 193 F. 768; Hulac v. Railway Co. (D.C.) 194 F. 747; McChesney v. Railroad Co. (D.C.) 197 F. 85; De Atley v. Railway Co. (D.C.) 201 F. 591, 596; Kelly v. Railway Co. (D.C.) 201 F. 602, 605.

'(2) The provision in the amendatory act of April 5, 1910, that no case arising under the Employers' Liability Act shall be removed from any state court of competent jurisdiction to any federal court, and re-enacted in section 28 of [247 F. 821] the Judicial Code, is not merely a personal privilege or exemption in favor of the plaintiff in respect to the jurisdiction of the particular District Court to which the case has been removed, which he may waive after the removal by appearance or consent (In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164), but is a provision limiting the jurisdiction of the federal courts as a class, and entirely withholding from them jurisdiction through removal proceedings, of cases arising under the Employers' Liability Act which have been previously commenced in state courts of competent jurisdiction. This distinction is emphasized by the contrast between the language of the first sentence in section 6 of the Employers' Liability Act, as amended by the Act of 1910, in reference to the particular district in which a suit 'may' be brought under that act, and that in the second sentence of the same section, which provides that 'no case' arising under the act and brought in any state court of competent jurisdiction 'shall be removed to any court of the United States.' It is also the necessary result of the proviso, framed in substantially the same language, contained in section 28 of the Judicial Code.'

Then Judge Sanford proceeds:

'Applying this rule of construction, I think it clear that the effect of the proviso in section 28 of the Code is to except cases arising under the Employers' Liability Act and pending in state courts from the class of cases whose removal to the federal courts is authorized under the preceding provisos of the section, and to so qualify the broad language used in the preceding portions of this section as to exclude from its provisions any and all cases of this character. In...