Platt v. Illinois Central Railroad Company

• Decision Date: 29 June 1962
• Docket Number: No. 19365.,19365.
• Parties: Augustine PLATT, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, and J. L. Ellington, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

305 F.2d 136 (1962)

Augustine PLATT, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, and J. L. Ellington, Appellees.

No. 19365.

United States Court of Appeals Fifth Circuit.

June 29, 1962.

Lester E. Wills, Meridian, Miss., for appellant.

O. Winston Cameron, Meridian, Miss., for appellees.

Before BROWN and WISDOM, Circuit Judges, and DE VANE, District Judge.

DE VANE, District Judge.

This appeal is from an order dismissing this action at the cost of appellant for want of prosecution after appellant stood on her motion to remand, which had been overruled by the District Court.

The action began by the filing of a declaration on behalf of appellant in the Circuit Court of Lauderdale County, Mississippi, on May 6, 1953. The declaration in one count contained the usual jurisdictional allegations, alleging residence of plaintiff and defendant Ellington in Mississippi and defendant Illinois Central Railroad Company a corporation of the State of Illinois, and demanding judgment against the defendants in the following language:

"On or about the date aforesaid (October 12, 1947) the Defendant, J. L. Ellington, the Engineer and servant of the Defendant Railroad Company, was operating a fast passenger train of the Defendant Railroad, within the speed limits of the City of Forest in the County of Scott, Mississippi, and he did then and there wrongfully, negligently and carelessly fail to keep a proper lookout, and unlawfully cause the said train, which he was operating, to run down, strike and kill, then and there, Glover Platt, the lawful husband of the Plaintiff. The Plaintiff charges that the said negligent and unlawful acts were the joint and concurrent, negligent and unlawful acts of the said Defendants directly and proximately causing the wrongful, fatal injury and death of the Plaintiff\'s husband."

On May 23, 1953, defendant Illinois Central Railroad Company took all the necessary steps to remove the case from the Circuit Court of Lauderdale County, Mississippi, to the United States District Court for the Southern District of Mississippi, Eastern Division. The only ground for a removal that concerns us here is the allegation in the petition for removal that the declaration does not state a cause of action against Ellington under state law, and, therefore, this action is pending solely against the Illinois Central Railroad Company.

On May 29, 1953, appellant filed her petition for remand of the case to the State Court. In response to a letter to the District Judge requesting a hearing on the motion to remand, the Judge advised the parties by letter on July 2, 1953, that it appeared to him that the order for remand should be granted on authority of American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, but stated that if the parties cared to argue the matter, it would be heard on July 10, 1953; otherwise, an order for remand would follow. Arguments were presented pro and con on briefs, appellant relying upon the Finn case and appellee contending that the case was controlled by Stokes v. Great Southern Lumber Company, (D.C.Miss.), 21 F.2d 185.

On August 13, 1953, the Court advised counsel of his decision on the motion to remand as follows:

"I have given careful consideration to your briefs in the above case upon the motion to remand and have reached the conclusion that the motion should be overruled. I first thought the case was controlled by American Fire & Casualty Co. vs. Finn, 341 U.S. 6 71 S.Ct. 534, 95 L. Ed. 702, but upon reconsideration am of the opinion it is controlled by Stokes vs. Great Southern Lumber Co., 21 Fed (2) 185. The declaration fails to show any duty upon the engineer to keep a lookout at the place where deceased was killed and the allegations are only legal conclusions as to his negligence, whereas as against the R.R. there is a presumption of negligence.

"I have signed and mailed to the clerk as of this date an order overruling the motion to remand."

Appellee claims federal jurisdiction under 28 U.S.C. 1332(a) (1) with the right to remove being conferred by 28 U.S.C. 1441. Appellant denies that either of these sections confer upon appellee the right to remove this case from the State Court to the Federal Court. We agree with the contention advanced by appellant and reverse the decision and order of the District Court.

The Stokes case, supra, was a decision by Judge Holmes, handed down on August 8, 1927, while he was a District Judge and before his elevation to this Court. The case was decided long before the amendment to 28 U.S.C. 71, which is now 28 U.S.C. 1441. The decision of Mr. Justice Reed of the Supreme Court in the Finn case, supra, is based upon the new section, which became effective September 1, 1948.

We are at a loss to understand why the District Judge in relying upon the Stokes case made no reference to the later decision of Judge Holmes in Tolbert v. Jackson et al., 5 Cir., 99 F.2d 513, decided after he was elevated to this Court. This case was decided by Judge Holmes on November 9, 1938, more than ten years prior to the amendment dealt with by Mr. Justice Reed in the Finn case. In the Tolbert case Judge Holmes, as we construe his opinion, attempted to overcome his decision in the Stokes case, and while he does not refer to that decision, what he did hold in the Tolbert case effectively overruled what he had previously held to be the law in the Stokes case. For this reason the Stokes decision had no force and effect upon this case and was improperly relied upon by the District Judge.

In the course of his opinion in the Finn case, Mr. Justice Reed said:

"A separable controversy is no longer an adequate ground for removal unless it

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