Newberry v. Central of Georgia Ry. Co., 10.

• Decision Date: 17 February 1921
• Docket Number: 10.
• Parties: NEWBERRY v. CENTRAL OF GEORGIA RY. CO.
• Court: U.S. District Court — Middle District of Alabama

271 F. 117

NEWBERRY v. CENTRAL OF GEORGIA RY. CO.

No. 10.

United States District Court, M.D. Alabama, Eastern Division.

February 17, 1921

W Moody, of Tuscaloosa, Ala., and Smith & Watkins, of Opelika Ala., for plaintiff.

Barnes & Walker, of Opelika, Ala., for defendant.

CLAYTON District Judge.

This action was brought in the state court and was removed to this court on the ground of diverse citizenship. There were six counts in the original complaint, some asserting a common-law cause of action for negligence and the others a case under the Alabama Employers' Liability Act (Code 1907, Sec 3910).

No facts were pleaded to show that the plaintiff, the employee of the railroad, was injured while engaged in interstate commerce, or that he was in the service of a railroad engaged in such commerce; on the contrary, the facts pleaded referred exclusively to the common-law right of action and to the right of action under the state Employers' Liability Act. In seasonable time the cause was removed into this court. After more than two years had elapsed from the date of the alleged injury, and on the day of the trial, the plaintiff amended his complaint by adding six additional counts, setting forth a cause of action under the state Employers' Liability Act only. The defendant pleaded the general issue, with leave to give in evidence any matter of special defense in accordance with the Alabama practice.

After all the evidence had been introduced for the plaintiff and the defendant, and when the court was about to charge the jury, the plaintiff offered to amend the complaint by adding two counts, in substance the same, alleging facts that the plaintiff was engaged in interstate commerce at the time of injury on a railroad engaged in such commerce between Columbus, Ga., and Birmingham, Ala., and in proper form prayed judgment under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665). The facts of such situation were fully and formally pleaded in the amendment offered.

Upon objection by the defendant the court refused to allow this last amendment upon the ground: (1) That if this cause had been originally brought under the federal Employers' Liability Act it could not have been, under the terms of such act, removed to the federal court, and hence it cannot now be converted into a new and a nontransferable cause of action; (2) the amendment sets forth a new cause of action which is barred by the statute of limitation of two years under the federal Employers' Liability Act, Sec. 6 (Comp. St. Sec. 8662); and (3) under no aspect of the case was the plaintiff entitled to a recovery, for the evidence showed that the plaintiff assumed a risk in working in a leaking, wet, and cold box car telegraph office, knowing the situation and realizing its dangers.

1. Section 1 of the Employers' Liability Act of April 22, 1908 (Comp. St. Sec. 8657), provides that:

'Every common carrier by railroad while engaged in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.'

And as amended April 5, 1910, it stipulates that:

'Under this act an action may be brought in (any) court of the United States, * * * ' and that 'the jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States. ' U.S. Comp. St. Sec. 8662.

If the amendment disallowed had been a part of the original complaint filed in this case in the state court, this cause would not have been removable to the federal court. This is so obviously true that citation of adjudged cases is hardly necessary. McChesney v. Ill. Cent. R. Co. (D.C.) 197 F. 85; Kelly's Adm'x v. C. & O. Ry Co. (D.C.) 201 F. 602; K.C. So. Ry. Co. v. Leslie, 238 U.S. 599, 35 Sup.Ct. 844, 59 L.Ed. 1478.

2. The amendment disallowed was a departure from the original cause of action, for it alleged appropriate facts and sought recovery under the federal Employers' Liability Act. It would have introduced a new cause of action-- one under the federal statute. It is settled that a departure in pleading may be either in the substance of the action or defense or the law upon which it is founded. U.P. Ry. v. Wyler, 158 U.S. 285, 15 Sup.Ct. 877, 39 L.Ed. 983. And while ordinarily a new cause of action may be introduced by amendment, the established limitation on the operation of its relation to the commencement of the suit is that if the amendment introduces new matter or a different cause of action not within the lis pendens as to which the statute of limitations has operated a bar at the time of making the amendment, the statute of limitations is as available as if the amendment were a new and independent suit. Mohr v Lemle, 69...