Rountree v. Adams Express Co.

• Decision Date: 07 November 1908
• Docket Number: 2,774.
• Citation: 165 F. 152
• Parties: ROUNTREE v. ADAMS EXPRESS CO.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 152

ROUNTREE v. ADAMS EXPRESS CO.

No. 2,774.

United States Court of Appeals, Eighth Circuit.

November 7, 1908

H. R Rountree was the husband of the defendant below, and the appellant here, and at the time of his death was an express agent in the employ of the complainant and appellee. While thus engaged he was killed in a collision which occurred in the state of Kansas. He entered upon his employment under a contract which bound him: First, to execute and deliver to the person or corporation owning or operating the railroad upon which he might be injured, a good and sufficient release, under his hand and seal, of all claims, demands, and causes of action arising out of such injury. Second, he ratified all contracts made by the Express Company with any railroad company, and particularly the St. Louis & San Francisco Railroad Company, upon which he was to run relative to the ultimate liability of the express company to save the railroad company harmless from damages occasioned to said Rountree through negligence of said railroad or its employes, and did expressly agree to be bound by said agreement as fully as if he were a party thereto. Third, he assumed all risks of accidents and injuries which he might sustain in the course of his employment, occasioned or resulting from the gross or other negligence of any corporation engaged in operating any railroad, or of any employe of any such corporation, or otherwise. Fourth, he agreed to indemnify and save harmless the express company of and from any claims which might be made against it by any corporation under any agreement with the express company theretofore or thereafter made, arising out of any claim made by said Rountree on his part, or by or on the part of his legal representatives, or any damages sustained by him or them by reason of any injury to him, or by reason of his death. Fifth, he bound himself, his heirs, executors, and administrators, for the payment to the express company, upon demand, of any sum which it might thereafter be compelled to pay in consequence of any such claim, or in defending the same. The appellant here, Mrs. Amy J. Rountree, instituted an action against the St. Louis & San Francisco Railroad Company in the proper court of the state of Kansas to recover damages for the death of her husband. The bill avers that the action is now pending, and that the plaintiff therein intends to prosecute the same to judgment, and that in case judgment is recovered the railroad company threatens to sue the complainant in this suit on a contract entered into by the complainant with the railroad company to indemnify that company and save it harmless from all such claims. It is further averred that both Rountree and his estate and the defendant are insolvent, and that, if it is compelled by the railroad company to pay the threatened judgment, it will suffer irreparable loss. The bill asked that Mrs. Rountree be decreed to execute and deliver to the St. Louis & San Francisco Railroad Company a good and sufficient release under her hand and seal, of all claims and causes of action arising out of the injury or death of the said H. R. rountree, and for a perpetual injunction restraining the said Amy J. Rountree, her agents and attorneys, from prosecuting said action against the St. Louis & San Francisco Railroad Company. An answer was filed to this bill, admitting the contract above described, and raising numerous issues to which it is not necessary to refer specifically. The cause was submitted upon bill and answer, and resulted in a decree in favor of the complainant, to review which this appeal is sued out.

E. F. Ware (Biddle & Lardner, Edwin Frieze, and Ware, Nelson & Ware, on the brief), for appellant.

William C. Scarritt (Elliott H. Jones and Edward L. Scarritt, on the brief), for appellee.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

We cannot enter upon the consideration of any of the interesting questions raised in this case and argued by counsel with distinguished ability, for the reason that it appears upon the face of the bill that the trial court was without jurisdiction of the cause. The basis of jurisdiction is the diversity of citizenship of the parties. The bill alleges that the Adams Express Company is a 'joint-stock company' duly organized and existing under the laws of the state of New York, and a citizen of that state, and that the defendant is a citizen of the state of Missouri. The averment that the complainant is a joint-stock company is not equivalent to the statement that it is a corporation. This precise question was presented to the Supreme Court in the case of Chapman v. Barney, 129 U.S. 677, 9 Sup.Ct. 426, 32 L.Ed. 800. That was a suit brought by the United States Express Company in the name of its president. It was described, as the complainant here is, as a joint-stock company, organized under and by virtue of a law of the state of New York, and a citizen of that state. The court of its own motion took cognizance of this defect, and reversed the judgment below, with direction to dismiss the case. Speaking to this point, the court said:

'On looking into the record, we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is that the United States Express Company is a joint-stock company organized under a law of the state of New York, and is a citizen of that state. But the express company cannot be a citizen of New York within the meaning of the statutes regulating jurisdiction unless it be a corporation. The allegation that the company was organized under the laws of New York is not an allegation that it is a corporation; in fact, the allegation is that the company is not a corporation, but a joint-stock company-- that is, a mere partnership. And, although it may be authorized by the laws of the state of New York to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a federal court.'

A similar question was presented in the case of Great Southern Fire Proof Hotel Company v. Jones, 177 U.S. 450, 20 Sup.Ct. 690, 44 L.Ed. 482. The defendant there was a limited partnership organized under a statute of Pennsylvania, and clothed with many of the attributes of a corporation. In fact, those limited partnerships so nearly resemble a corporation that the Circuit Court of Appeals of the Sixth Circuit in Andrews Brothers Company v. Youngstown Coke Co., Limited, 86 F. 585, 30 C.C.A. 293, held them to be corporations for the purpose of conferring jurisdiction upon the federal courts. But the Supreme Court, in the case of Great Southern Fire Proof Hotel Company v. Jones, declined to accept this interpretation, and refused to extend the presumption that the stockholders of a corporation are citizens of the state under which it is organized, to cover such limited partnerships, and reversed the case, with directions to dismiss it for want of jurisdiction.

The same rule is again enforced, upon a full review of the authorities, in Thomas v. Board of Trustees, 195 U.S. 207, 25 Sup.Ct. 24, 49 L.Ed. 160.

The complainant in the bill attempts to save the jurisdiction of the court by alleging that the contracts between it and the railroad company, and also between it and Mr. Rountree, were made and entered into for the purpose of carrying on commerce among the states, and claims the protection of the clause of the Constitution dealing with interstate commerce, and also section 10 of article 1 of the Constitution; and also the fourteenth amendment. It...