Scoggins v. Union Pac. R. Co.

• Decision Date: 04 June 1923
• Citation: 292 F. 162
• Parties: SCOGGINS v. UNION PAC. R. CO.
• Court: U.S. District Court — District of Minnesota

292 F. 162

SCOGGINS v. UNION PAC. R. CO.

United States District Court, D. Minnesota, Fourth Division.

June 4, 1923

Tautges & Wilder, of Minneapolis, Minn., for plaintiff.

Sanborn Graves & Ordway, of St. Paul, Minn., for defendant.

McGEE District Judge.

This is a personal injury action commenced by the plaintiff in the district court of Swift county, Minn., on the 2d day of March, 1923, in which the plaintiff seeks to recover from the alleged to have been sustained by him while in the employ of the de-defendant damages stated in his petition at $50,000 for injuries defendant as a car repairer in its car shops at Grand Island, Neb., on the 10th day of June, 1922.

The defendant caused the action to be removed to this court on the ground of diverse citizenship of the parties.

The plaintiff moves to remand the case to the state court on the following grounds:

(1) That the complaint and record in said cause do not present a cause removable under the statutes and laws of the United States from said state court to said United States District Court.

(2) That said action is founded and based on the federal Employers' Liability Act of 1908, and the amendments thereto.

(3) That said cause of action was improperly and unlawfully removed from said District Court to said United States District Court.

(4) That said United States District Court has no jurisdiction of said cause of action to hear and determine the same.

(5) The requisite diversity of citizenship for a removal does not exist in said cause.

(6) That the claim made by defendant in its petition for removal of said cause to the District Court of the United States for the District of Minnesota, Fourth Division, the substance of which is that the plaintiff fraudulently alleged a cause of action under the federal Employers' Liability Act (Comp St. Secs. 8657-8665), in order to prevent a removal of said cause from said state court to said United States District Court, is untrue, and that plaintiff denies the allegations contained in paragraphs 6, 7, and 8 of defendant's petition for removal and the other matters set forth and contained in said petition, except in so far as said petition quotes from, or admits, the allegations contained in plaintiff's complaint.

The requisite diversity of citizenship to warrant a removal of the case from the state to the federal court is shown by the record. Plaintiff's contention to the contrary rests upon the rule laid down in Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, but that case recently has been reconsidered and expressly overruled. General Investment Co. v. L.S. & M.S. Ry. Co., 260 U.S. 261, 43 Sup.Ct 106, 67 L.Ed. 244; Lee v. Chesapeake & O. Ry. Co., 260 U.S. 653, 43 Sup.Ct. 230, 67 L.Ed. 443.

The plaintiff also contends that the allegations of his complaint bring the case within the provisions of the federal Employers' Liability Act and amendments thereto, and by the terms of that act it is not removable.

The defendant, while conceding that the complaint on its face states a cause of action within the provisions of the federal Employers' Liability Act, maintains: First, that the plaintiff, for the purpose of bringing the case within the provisions of that act, and thereby to prevent the defendant from removing the same to this court, has falsely and fraudulently alleged in his complaint, without any intention of proving the same, that, at the time he was injured, he was engaged, and the car he was repairing was employed, in interstate commerce; second, that the plaintiff in his complaint has stated two separate and independent causes of actions. The first, under the provisions of the federal Employers' Liability Act, and the second, under sections 6053, 6054, and 7879 of the Statutes of the state of Nebraska; and, the requisite amount and diversity of citizenship existing, the second cause of action is removable to this court, and carries with it the cause of action under the federal Employers' Liability Act.

If the first position taken by the defendant is sound, it is decisive of this motion and renders a consideration of the second point unnecessary. The questions, therefore, are:

(1) Whether the plaintiff at the time he was injured was engaged, and the car upon which he was working was employed, in interstate commerce. And, if not,

(2) Whether the plaintiff, for the purpose of defeating the right of the defendant to remove the case to this court, has falsely and fraudulently alleged that he was so engaged and the car upon which he was working was so employed at the time he alleges he was injured.

Whatever doubt may, at one time, have existed as to the right of the defendant in a removal proceeding to assail as false and fraudulent the allegations of the plaintiff's complaint, which prima facie would prevent the removal of the case, has been dispelled by later cases in the Supreme Court. Louisville & Nashville R.R. Co. v. Wangelin, 132 U.S. 599, 601, 10 Sup.Ct. 203, 33 L.Ed. 473; Illinois Cent. R.R. Co. v. Sheegog, 215 U.S. 308, 316, 30 Sup.Ct. 101, 54 L.Ed. 208; Alabama Great Southern Ry. Co. v. Thompson, 200 U.S. 206, 218, 26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; Wecker v. National Enameling & S. Co., 204 U.S. 176, 27 Sup.Ct. 184, 51 L.Ed. 430, 9 Ann.Cas. 757; Chicago, R.I. & P. Ry. v. Dowell, 229 U.S. 102, 114, 33 Sup.Ct. 684, 57 L.Ed. 1090; Chesapeake & O. Ry. Co. v. Cockrell, 232 U.S. 146, 152, 34 Sup.Ct. 278, 58 L.Ed. 544; Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 Sup.Ct. 237, 62 L.Ed. 713; Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 98, 42 Sup.Ct. 35, 66 L.Ed. 144.

The question, therefore, is whether the plaintiff, in his petition, and contrary to the truth and fact, has falsely and fraudulently, and for the purpose of preventing the defendant from removing the case into this court, alleged that the plaintiff at the time he was injured was engaged, and the car upon which he was working was at the same time employed, in interstate commerce.

The plaintiff alleges in his petition:

'Said defendant, as a part of its said line and system of railroad, maintained and operated certain railroad shops, railroad yards and repair tracks, commonly known as 'rip tracks,' at Grand Island, Neb., and that on the 10th day of June, 1922, this plaintiff was in the employ of said defendant as a car repairer in its said yards at Grand Island, Neb.; * * * that during all of said times, said defendant was engaging in the business of commerce between the several states and territories of the United States and foreign countries, as a common carrier by railroad, and that at the time this plaintiff was injured, as hereinafter alleged, he was employed by it in such commerce; * * * that on or about June 10, 1922, at the hour of about 10 o'clock a.m. of said day, plaintiff in the course of his employment and duties as such car repairer for defendant was engaging in the work of repairing one of its interstate cars on a track commonly known as the 'rip track,' in its said yards at Grand Island, Neb., and that said repairs consisted in part of straightening the steel center beam of said car.'

The defendant's petition for removal is verified and, after quoting the above paragraph from the plaintiff's petition, alleges:

'(6) Your petitioner avers and shows the court that the allegations hereinbefore quoted from the petition herein are false, and are and were at the time said petition was filed known by plaintiff to be false; that said allegations were and are fraudulently made by plaintiff in his petition for the sole purpose of preventing your petitioner from removing the above-entitled action to the United States District Court; and your petitioner avers that it is and has always been the intention of plaintiff to try the above-entitled case upon the cause of action based upon the laws of the state of Nebraska.

'(7) Your petitioner avers that in truth and in fact, and to the knowledge of plaintiff, he was not at the time of his alleged injury employed by defendant in interstate commerce and was not at said time engaged in commerce of any character; that, on the contrary, on the said 10th day of June, 1922, at the time of his alleged injury, plaintiff was assisting in making general repairs upon a freight car of this defendant; that the said freight car had not been for a long time prior to the said 10th day of June, 1922, was not at said date, and was not for a long time thereafter engaged in interstate commerce or commerce of any character; and your petitioner avers the fact to be that the said freight car was on the 27th day of April, 1922, withdrawn from service and from commerce of every character, and was on the said date placed on the repair track of this defendant for general repairs, overhauling, and rebuilding; that for the purpose aforesaid said freight car remained on said repair track all of the time from said 27th day of April, 1922, until and including the said 10th day of June, 1922, and for some time thereafter, and that it was while he was assisting in the work of repairing, overhauling, and rebuilding the said car, as aforesaid, that plaintiff suffered the alleged injury.

'(8) Your petitioner further avers and shows the court that the said allegation in plaintiff's petition, last above quoted, was made without any purpose or intention of proving the same, and that the same constitutes a mere fraudulent device, the object of which is to prevent your petitioner from removing the above-entitled suit to the United States District Court; and your petitioner avers that the plaintiff well knew when he filed his petition, and now knows, that at the time he suffered his injuries he was not employed by your petitioner in interstate commerce; and your pe

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