Nickels v. Pullman Co.

• Decision Date: 07 August 1920
• Citation: 268 F. 610
• Parties: NICKELS v. PULLMAN CO.
• Court: U.S. Court of Appeals — Fourth Circuit

268 F. 610

NICKELS v. PULLMAN CO.

United States District Court, W.D. Virginia.

August 7, 1920

Morison Morison & Robertson, of Bristol, Va., for plaintiff.

Scott &amp Buchanan, of Richmond, Va., for defendant.

McDOWELL District Judge.

1. This action was removed by the defendant to this court from the corporation court of the city of Bristol Va. The plaintiff is a citizen of Virginia, residing within this judicial district. The defendant is an Illinois corporation. The amount involved is $25,000. The action arose from the fact, as alleged, that the plaintiff, a woman, was treated with indignity by the conductor and porter, while a passenger on a Pullman car. The plaintiff started on her journey as a Pullman passenger at Bristol Va., and the incidents set out in the declaration occurred in Alabama. The service of the process of the corporation court was made on the secretary of state at Richmond, Va., who is by the new Virginia Code made the agent of all nondomestic corporations. Sections 3845, 3847, Code 1919. The theory of the plaintiff seems to be that a part of the cause of action arose in Bristol, where the Pullman ticket was purchased. Section 6050, Code 1919. On removal of this cause to this court, the defendant, appearing specially, filed a plea to the jurisdiction and also a plea in abatement, setting up want of jurisdiction of the corporation court. The plaintiff, not objecting or replying to either plea, also appearing specially, has filed a motion to remand, and stands thereon.

This litigation (but not this action) was commenced in this court. The plaintiff filed in this court at Big Stone Gap, in 1916 a declaration substantially, if not exactly, the same as the present declaration. The first of plaintiff's efforts to get the defendant into court consisted of service of the process of this court in this district on one Bush, alleged to be an agent of the defendant, and also by service in the Eastern district of Virginia on the statutory agent (sections 1105a-14, 3225, Code 1904) of the Pullman Company. Making a special appearance for the purpose, the defendant showed that Bush was not an agent of the defendant on whom process could be validly served, and of course was successful in its contention that service of the summons of this court outside of this district was invalid. The plaintiff next had service made in this district on the Norfolk & Western Railway Company, alleging it to be an agent of the Pullman Company on whom service could be made. But on reading the contract between these companies I held that such was not the fact. The next effort was the publication of the summons in a weekly newspaper of small circulation published in this district. This effort also was held to have been unavailing. The plaintiff then sued out writ of error, but unfortunately from the wrong court. Nickels v. Pullman Co. (C.C.A.) 263 F. 551. The plaintiff then instituted the present action in the corporation court of Bristol. The plaintiff files with her motion to remand, as part thereof, a copy of the record of the action in this court at Big Stone Gap. In the petition for removal there is no allegation of facts showing that, at the time of the institution of this action in the corporation court, the defendant had in this district any agent on whom the service of the process of this court in an original action could have been validly made; nor does the record otherwise show such fact. In the record is a plea in abatement, verified March 31, 1917, and filed April 4, 1917, in which it is said:

'This defendant has no agent in the Western district of Virginia, authorized to receive service of process, or upon whom process against this company can be legally served.' The Supreme Court has frequently ruled that the purpose of the Judiciary Act of 1887-88 (24 Stat. 552, 25 Stat. 433), was to restrict the jurisdiction of the federal trial courts. In Smith v. Lyon, 133 U.S. 315, 319, 10 Sup.Ct. 303, 304 (33 L.Ed. 635), it is said:

'* * * Show the purpose of the Legislature to restrict rather than to enlarge the jurisdiction of the Circuit Courts. * * * '

In the case of In re Pennsylvania, 137 U.S. 451, 454, 11 Sup.Ct. 141, 142 (34 L.Ed. 738), it is said:

'The general object of the act is to contract the jurisdiction of the federal courts.'

In Fisk v. Henarie, 142 U.S. 459, 467, 12 Sup.Ct. 207, 210 (35 L.Ed. 1080), it is said:

'The attempt was manifestly to restrain the volume of litigation pouring into the federal courts. * * * '

In Shaw v. Quincy Mining Co., 145 U.S. 444, 449, 12 Sup.Ct. 935, 937 (36 L.Ed. 768), it is said:

'And the general object of this act, as appears upon its face, and as has often been declared by this court, is to contract, not to enlarge, the jurisdiction of the Circuit Courts of the United States.'

In Camp v. Gress, 250 U.S. 308, 312, 39 Sup.Ct. 478, 480 (63 L.Ed. 997) it is said:

'The 1887-1888 act accomplished its purpose of restricting the jurisdiction of the federal courts, in part, by, * * * ' etc.

See, also, Missouri Pac. R. Co. v. Fitzgerald, 160 U.S. 556, 583, 16 Sup.Ct. 389, 40 L.Ed. 536.

The question here turns on the intended meaning of the word 'jurisdiction,' as used in section 2, Act of 1887-88 (25 Stat. 434) and in section 28 of the Judicial Code (Comp. St. Sec. 1010). The cause here is one between citizens of different states, involving much over $3,000. It follows that every federal trial court in the United States has original jurisdiction of what may inaccurately, but conveniently, be called the subject-matter of this controversy. It is also true that every federal trial court in the United States would have complete original jurisdiction (of the subject-matter and of the persons of both parties), if the defendant either consented to the jurisdiction or waived its objection. The removal clause (section 2) of the statute of 1887-88 refers to the original jurisdiction given by section 1. The language is:

'* * * Of which the Circuit Courts of the United States are given original jurisdiction by the preceding section. * * * '

In section 28 of the Code District Courts are substituted, and 'this title' takes the place of 'the preceding section.'

This language, considered alone, could mean: (1) Any cause may be removed if the federal trial courts have original jurisdiction of the subject-matter; or (2) if the particular federal court to which the cause is removed would have had original jurisdiction of the subject-matter and jurisdiction over the person of the defendant by consent (or by waiver of objection) of the defendant; or (3) if the particular federal court to which the cause is removed would have had complete original jurisdiction, if the defendant had neither consented to the jurisdiction of the court over his person, nor waived his objection to such jurisdiction. For brevity's sake, I shall refer to such jurisdiction of the person of the defendant as an in invitum or compulsory jurisdiction.

If the first construction is right, every action between citizens of different states involving over $3,000 is removable. I know of no power vested in the subordinate federal courts to decline to follow either the rulings or the necessary implications of the rulings of the Supreme Court. Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264 (and I refer only to that ruling which stands to-day unreversed and, by the Supreme Court, unquestioned), and In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, 14 Ann.Cas. 1164, seem to me to put the first of the above-mentioned constructions out of the range of discussion. In the first case a citizen of Michigan sued a citizen of Louisiana in a state court within the Eastern federal judicial district of Missouri. The defendant removed the case to the federal trial court of that district. The plaintiff moved to remand. It was held that the cause should have been remanded. The ground of the decision (203 U.S.p. 460, 27 Sup.Ct. 150, 51 L.Ed. 264), is that the particular federal court to which the case was removed would not have had original jurisdiction of the action. In the Moore Case, a citizen of Illinois (the citizenship of the next friend of the plaintiff being of no importance, 209 U.S. 508, 28 Sup.Ct. 585, 706. 52 L.Ed. 904, 14 Ann.Cas. 1164; Blumenthal v. Craig, 81 F. 320, 26 C.C.A. 427) sued a citizen of Kentucky in a state court within the Eastern district of Missouri. The defendant removed the case to the federal trial court of that district. Thereafter the plaintiff filed in the federal court an amended pleading on the merits and entered into several stipulations for continuances. Still later the plaintiff moved to remand, and, this being overruled, applied for mandamus. The jurisdiction of the federal court was upheld on the ground that both parties had waived their right to object to the jurisdiction of that court. In each case there was a controversy between citizens of different states, involving the requisite amount. That these facts alone do not give jurisdiction on removal cannot to my mind be questioned by a subordinate federal court. In support of this conclusion see Pendar v. Empire Co. (D.C.) 260 F. 669; Guaranty Trust Co. v. McCabe, 250 F. 699, 163 C.C.A. 31; Peninsular Co. v. Royal Co. (D.C.) 237 F. 297; Mutual Life Ins. Co. v. Painter (D.C. 4th Circuit) 220 F. 998, 999; Western Union Co. v. Louisville & N.R. Co. (D.C.) 201 F. 932; Baldwin v. Pacific, etc., Co. (D.C.) 199 F. 291; Stone v. Chicago, etc., R. Co. (D.C.) 195 F. 832; Odhner v. Northern Pac. Co. (C.C.) 188 F. 507; Shawnee Bank v. Missouri etc. R. co. (C.C.) 175 F. 456; Baxter etc. v. Hammond Co. (C.C.) 154 F. 992; Southern Pac. Co. v. Burch, 152 F. 168, 82 C.C.A. 34; Goldberg v. German Ins. Co. (C.C.) 152 F. 831, 834; Yellow Aster...