Nichols v. Chesapeake & O. Ry. Co.
| Decision Date | 02 April 1912 |
| Docket Number | 2,183. |
| Citation | 195 F. 913 |
| Parties | NICHOLS v. CHESAPEAKE & O. RY. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Nichols was a brakeman in the employ of the Railway Company. In March, 1904, while switching, he was injured. He brought an action in the state court against the Railway Company. It was removed to the federal court, and then, by plaintiff voluntarily dismissed. He then, within one year from his injury, brought an action in the state court against the Railway Company and one Cook. This action was based on the negligence of Cook, as engineer of the train, and the company's negligence through Cook. Plaintiff and Cook were citizens of Kentucky. The Railway Company was a citizen of Virginia. The Railway Company filed its petition for removal, claiming a separable controversy. The state court passed upon and denied the petition. The transcript was filed in the federal court, where a motion to remand was made, and denied. Thereupon plaintiff entered, in the federal court, an order discontinuing the action. These proceedings will be spoken of as the first removal.
Shortly afterwards, and in July, 1905, plaintiff filed, apparently in this same action, in the state court, an amended petition setting out also violation by the Railway Company of the Safety Appliance Act (Act March 2, 1893, 27 Stat. 531), and that his injury resulted from such violation. This amendment was apparently by way of addition to the petition on file and not by way of substitution. Defendant again filed a petition for removal on the ground of separable controversy and the state court passed upon and granted the application, and transcript was again filed in the federal court. Plaintiff prosecuted error to the Court of Appeals of Kentucky from the order of the state court granting the removal, but the order was affirmed. Nicholas v. C. & O. Ry., 127 Ky. 310, 105 S.W. 481, 17 L.R.A.(N.S.) 861. Plaintiff also moved in the federal court to remand, but the motion was denied. These will be spoken of as the second removal proceedings.
Defendant demurred to the amended petition of July, 1905. This demurrer was sustained. Plaintiff in December, 1907, filed an 'amended and substitute' petition which counted only upon the absence of the devices required by the Safety Appliance Act.
Eventually an issue of fact was joined and came on for trial in the federal court. That court directed a verdict for defendant, and from the judgment entered upon such verdict Nichols now brings error to this court. Nichols challenges this judgment, because of lack of jurisdiction in the court and because the direction was wrongly given. The Railway Company affirms the jurisdiction, and upholds the directed verdict on three grounds: (1) That there was no proof of negligence; (2) that contributory negligence was clear; (3) that the statute of limitations had run.
Allan D. Cole and J. M. Collins (W. T. Cole, of counsel), for plaintiff in error.
E. L. Worthington (Worthington, Cochran & Browning, on the brief), for defendant in error.
Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.
DENISON Circuit Judge (after stating the facts as above).
We meet, first, the question of the jurisdiction of the trial court, as fixed by one or the other of the removal proceedings. In the first removal the petition did not, in terms, allege that the joinder of Cook was fraudulently made in order to prevent removal, nor did it allege any facts requiring that conclusion. It was based on the theory that the declaration showed no joint liability against the Railway Company and Cook, and the conclusion that Cook was improperly joined thus depended upon the laws of Kentucky upon that subject. Such a joint liability, under the Kentucky law, does exist; and this court has held that an essentially similar petition was insufficient to give jurisdiction on removal. Enos v. Kentucky Co. (C.C.A. 6) 189 F. 342, 346. The same conclusion must be had here; and it follows that the transactions in the federal court during the first removal may be disregarded, and that the purported discontinuance of the action, filed in that court, was wholly ineffective. It is true that the judgment of the federal court denying the motion to remand was binding on plaintiff until set aside on direct attack, and plaintiff, in dismissing the action, did so at his peril. If it had been finally decided that the action was pending in the federal court at the time of the dismissal, or if defendant had relied upon the dismissal in such a way as to raise an estoppel, a different question would exist.
By the amended petition of July, 1905, it appeared that a controversy existed whether the Railway Company was liable to Nichols by reason of the existence and effect of the Safety Appliance Act. This was a controversy with which Cook was not concerned. It was not alleged that he was liable, or that the Railway Company, through him, was liable, upon this subject-matter. At the same time the petition alleged a joint liability against the Company and Cook, resulting from Cook's common-law negligence as engineer in the management of the train. It has been distinctly held by the Supreme Court (Union Pac. Ry. Co. v. Wyler, 158 U.S. 285, 15 Sup.Ct. 877, 39 L.Ed. 983) that the liability under a statute for failing to observe its provisions and the liability under the common-law rules of negligence may give rise to causes of action so separate that one may be barred by statute where the other would not be. It seems necessarily to follow that, where the other would not be. It seems necessarily to there must be separable controversies. Each cause of action must present a controversy. Different rights of action may, it is true, often be joined in one suit, but this does not make them inseparable. The existence of the 'separable controversy' right of removal presupposes that it may be found joined in one action with another controversy. In the present case, even if the cause of action is not 'separate, ' yet the 'separable' character of the claim under the statute is made clear by the fact that one of the defendants has no concern with this question. We are satisfied that the second removal petition conferred jurisdiction on the federal court (Jackson v. C., R.I. & P. Ry. Co., 178 F. 432, 102 C.C.A. 159), and that the action which had been commenced in March and was then pending in the state court upon the amended July petition was, for the first time, effectively removed.
The question whether the action was commenced in time is to be governed by the statutes of Kentucky. Even if the cause of action should be treated as one created by the federal statute, still, in the absence of any general federal statutes of limitation, and in the absence of any specific limitation in the statute creating such cause of action, the rule of limitation is to be found in the statutes of the state. Campbell v. Haverhill, 155 U.S. 610, 613, 15 Sup.Ct. 217, 39 L.Ed. 280.
Section 2515, Kentucky Statutes, directs, directs that various actions, and among others those 'upon a liability created by statute' shall be commenced within five years; while section 2516 prescribes that certain actions, and among others those for personal injury, must be commenced within one year after the cause of action accrues. The defendant invokes section 2516 as the applicable section, and insists that the recovery now sought against the Railway Company for violation of the Safety Appliance Act is upon a new cause of action which was first alleged by the amendment of July 1905, and that an action for this cause was then barred by this statute. In this connection the defendant relies upon the case of Union Pacific Railway Company v. Wyler, already cited, to the effect that, in such case, it is the date of such amendment, and not the date of commencing the suit which controls the bar of the statute. We do not find it necessary to decide whether the amendment of 1905 did introduce a new cause of action, or whether this case, by reason of the form of the original petition or the rules of pleading obtaining in Kentucky, should be distinguished from the Wyler Case, as somewhat similar questions have been by this court (So. Ry. Co. v. Simpson, 131 F. 705, 711, 65 C.C.A. 563; ...
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