Patton v. Cincinnati, N.O. & T.P. Ry.

• Decision Date: 23 May 1913
• Docket Number: 1,201.
• Citation: 208 F. 29
• Parties: PATTON v. CINCINNATI, N.O. & T.P. RY.
• Court: U.S. District Court — Eastern District of Tennessee

208 F. 29

PATTON v. CINCINNATI, N.O. & T.P. RY.

No. 1,201.

United States District Court, E.D. Tennessee, Southern Division.

May 23, 1913

This is an action for $25,000 damages commenced by the plaintiff by summons from the Circuit Court of Hamilton County, Tennessee a county within the Southern Division of the Eastern District of Tennessee, which was issued and served on November 4 1912, and was returnable on January 6, 1913. On January 9 1913, the plaintiff's declaration not having been filed the defendant filed its petition in the State Court, with proper bond, for removal of the suit to this court, the sole ground of removal alleged being that the suit was of a civil nature in which the matter in controversy exceeded three thousand dollars, exclusive of interest and costs, and that the controversy was wholly between citizens of different States, the plaintiff being a citizen of Tennessee and the defendant a corporation created under the laws of Ohio and a citizen of that State. An order of removal was made by the State court, and a certified copy of the record filed in this court on February 6, 1913. On April 28, 1913, the plaintiff filed her declaration in this court, alleging a cause of action against the defendant arising under the Federal Employers' Liability Act, and subsequently, on the same date filed her motion to remand the cause to the State court, on the ground, in substance, that as shown by her declaration the cause was one arising under such act and hence not removable to this court.

Littleton, Littleton & Littleton, of Chattanooga, Tenn., for plaintiff.

Pritchard, Allison & Lynch, of Chattanooga, Tenn., for defendant.

On Motion to Remand.

SANFORD District Judge (after stating the facts as above).

Section 6 of the Employers' Liability Act of April 22, 1908, c. 149 (35 Stat. 66), as amended by section 1 of the Act of April 5, 1910, c. 143 (36 Stat. 291 (U.S. Comp. St. Supp. 1911, p. 1324)), provides as follows:

'Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. 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.'

Section 28 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1094 (U.S. Comp. St. Supp. 1911, p. 140)), which went into effect January 1, 1912, provides, among other things, as follows:

'Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the district courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction by this title, and which are now pending or which may hereafter be brought, in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State. * * * Provided, That no case arising under an Act entitled 'An act relating to the liability of common carriers by railroad to their employes in certain cases,' approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any State court of competent jurisdiction shall be removed to any court of the United States.'

After careful consideration I have reached the following conclusions:

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; 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 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.

'The office of a proviso, generally, is, either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview. ' Minis v. United States, 15 Pet. 423, 445, 10 L.Ed. 791; Strauser v. Railway Co., supra, at page 294.

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 classes 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 other words, in my opinion, the effect of this proviso is the same as if the preceding enacting provisions of the section had expressly excepted from each class of cases which might be removed to the Federal courts all cases arising under the Employers' Liability Act and pending in the State courts.

In Strauser v. Railroad Co., supra, at page 294, Munger, District Judge, said:

'It is quite obvious that the Judicial Code, in its general purpose, seeks further to restrict the jurisdiction of the United States courts, and a special restriction of this kind, placed as it is at the close of the section granting the general right of removal, shows that Congress intended that no case should be removed from the State court, upon any ground, provided only that it arises under the Acts of Congress cited.'

In Lee v. Railway Co., supra, at page 686, Wright, District Judge, said:

'By adding this proviso to the general law, as was done by Congress, defining removable cases, and giving the right to a removal thereof, the general right of removal defined in the enacting part of the section was thus limited, generally throughout the section in each class of cases defined, and whenever a case arising under the liability Act falls in any class of cases subject to removal, it is by force of the provisions of the proviso excepted from such right of removal.' And in Ullrich v. Railroad Co., supra, at page 770, Hand, District Judge, said:

'The words used prohibit absolutely any removal when the 'case' is of a given kind.'

And see, inferentially, as to the effect of this proviso in entirely 'withholding' jurisdiction from the Federal courts in cases of this kind, the opinion of the Circuit Court of Appeals in Teel v. Railway Co., supra.

In Ayres v. Watson, 113 U.S. 594, 5 Sup.Ct. 641, 28 L.Ed. 1093, it was said, in construing the provisions of the Act of March 3, 1875, in reference to the removal of causes to the Federal courts, that the second section, defining the cases in which a removal might be made, was 'jurisdictional'; that its conditions were 'indispensable' and must be shown by the record; and that the jurisdictional facts which it prescribed were 'absolutely essential' and could not be waived, and their want would be error 'at any stage of the cause.' And it is clear that while the plaintiff may after removal of a cause, waive objection to the jurisdiction of the particular Federal court to...