Rice v. Boston & M.R.R.

• Decision Date: 17 March 1913
• Citation: 203 F. 580
• Parties: RICE v. BOSTON & M.R.R.
• Court: U.S. District Court — Northern District of New York

203 F. 580

RICE v. BOSTON & M.R.R.

United States District Court, N.D. New York.

March 17, 1913

Leary &amp Fullerton, of Saratoga Springs, N.Y., for the motion.

Jarvis P. O'Brien, of Troy, N.Y., opposed.

RAY District Judge.

In this case there is the necessary diversity of citizenship and amount in controversy to warrant removal to and retention of the case in the federal court, but the plaintiff insists it is a case arising under the federal act of April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St Supp. 1911, p. 1322)), 'An act relating to the liability of common carriers by railroads to their employes in certain cases,' and that it lawfully could not have been removed from the Supreme Court of the state and must be remanded.

Section 28 (chapter 3, 'District Court, Removal of Causes') of the Judicial Code of the United States (Act March 3, 1911, c. 231, 36 Stat. 1094 (U.S. Comp. St. Supp. 1911, p. 141)), after providing for the removal of causes, says:

'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.'

The plain reading and effect is to prohibit the removal of a case arising under that act into the federal court. The complaint in this action states facts showing a cause of action under the federal act referred to; but it goes further, and states facts not necessary to the statement of a cause of action under the federal act, and which make out a liability of defendant at common law, and also under an act of the Legislature of the state of Massachusetts. The result is that, if the case is remanded as the pleadings stand, the plaintiff at the trial in the state court may not find it necessary to make out a cause of action under the federal act, one not removable, but may prove a cause of action sustainable at common law, or one under the Massachusetts statute, etc., a removable cause of action, and prevail on that cause of action, thus depriving the defendant of the right to remove as to such a cause of action to the federal court and have the case on that issue tried there. In short, by pleading facts bringing the case within the federal act, and facts bringing the case within the common-law liability, and facts bringing it within the state statute liability, not necessary to be alleged or proved to make a case under the federal act (and the facts alleged bringing it within the federal act not being necessary to the cause of action under the common law or state statute), in the state court, the plaintiff may succeed on either one of three theories; that is, he may abandon all pretense that the case is within the federal act and yet succeed. By artful pleading he defeats removal.

This question of removal has been up in the following cases: Van Brimmer v. Texas & P.R. Co. (C.C.) 190 F. 394; Symonds v. St. Louis & S.E.R. Co. (C.C.) 192 F. 353; Lee v. Toledo, St. L. & W.R. Co. (D.C.) 193 F. 685; Hulac v. Chicago & N.W.R. Co. (D.C.) 194 F. 747; McChesney v. Ill. Cent. R. Co. (D.C.) 197 F. 85; Ullrich v. New York, N.H. & H.R. Co. (D.C.) 193 F. 768. The Ullrich Case is nearest in point here, and assumes that three causes of action are pleaded, which under the New York Code seems not to be the case. See later.

If, on the trial in the state court, the plaintiff shall abandon the theory that the case arose under the federal act, or shall fail to show a case within that act, and that court has power at once to send the case back to the federal court, the rights of the defendant to removal will be protected and preserved. However, it is plain the New York courts cannot do this. Section 29, Judicial Code of the United States. In Payne v. N.Y.S. & W.R.R. Co., 201 N.Y. 436, 95 N.E. 19, the Court of Appeals (New York) has held in effect that this complaint states but a single cause of action, although based on three several grounds of liability, viz., the federal statute, the common-law liability, and the Massachusetts statute.

'In an action to recover damages for personal injuries claimed to have been caused by the negligence of defendant, the plaintiff may...