Smith v. Detroit & T.S.L.R. Co.

• Decision Date: 09 December 1909
• Docket Number: 2,140.
• Parties: SMITH v. DETROIT & T.S.L.R. CO.
• Court: U.S. District Court — Northern District of Ohio

175 F. 506

SMITH v. DETROIT & T.S.L.R. CO.

No. 2,140.

United States Circuit Court, N.D. Ohio, Western Division.

December 9, 1909

Harvey Scribner and T. F. Connell, for plaintiff.

Chas A. Schmettau, for defendant.

SATER District Judge (sitting by designation).

This is an action to recover damages for injuries alleged to have been received through the defendant's negligence.

The amended petition and the affidavits in support of the motion objecting to the court's jurisdiction and asking for the dismissal of the action show that the defendant is a corporation duly organized and incorporated under the laws of the state of Michigan; that at the time the plaintiff in the course of his employment was injured it was engaged in interstate commerce and that the plaintiff is a citizen of the Western division of this district. It is conceded by plaintiff's counsel that the action is brought under the federal employer's liability act of April 22, 1908 (35 Stat. 65, c. 149 (U.S Comp. St. Supp. 1909, p. 1171)).

This is manifest, however, without such admission. It is true that the plaintiff's pleadings do not mention that act, but that is not material. Voelker v. Railway Co. (C.C.) 116 F. 867; Thornton on Employer's Liability & Safety Appliance Acts, Sec. 107; Cound v. Atchison, Topeka & Santa Fe Ry. Co. (C.C.) 173 F. 527.

The defendant challenges the court's jurisdiction, and insists that the suit should be brought in the district of Michigan, of which it is an inhabitant, because the jurisdiction claimed does not rest solely on the fact that the suit is brought between citizens of different states but is also based on the ground that it arises under a law of the United States. In the Cound Case, in referring to the act in question, and to the purpose of the Congress to confer rights and benefits not previously enjoyed by injured employes, it was said:

'Indeed, the act is the law, and the only law, under which suits like the present one may be brought. It is the law of the case by which the rights of the employe and the liability of the carrier are measured. The very subject-matter of the controversy is federal. The suit involves the construction, application, and effect of an act of Congress (Swafford v. Templeton, 185 U.S. 487 (22 Sup.Ct. 783, 46 L.Ed. 1005); Wiley v. Sinkler, 179 U.S. 58 (21 Sup.Ct. 17, 45 L.Ed. 84)), and tested by all the authorities, it is one arising under a law of the United States.'

Other authorities to the point that the case arises under and involves a law of the United States are Tennessee v. Davis, 100 U.S. 264, 25 L.Ed. 648, Patton v. Brady, 184 U.S. 608, 22 Sup.Ct. 493, 46 L.Ed. 713, Wyman v. Wallace, 201 U.S. 230, 26 Sup.Ct. 495, 50 L.Ed. 738, Defiance Water Co. v. Defiance, 191 U.S. 184, 24 Sup.Ct. 63, 48 L.Ed. 140, Tift v. Southern Ry. Co. (C.C.) 123 F. 789, 793, and Northern Pac. Ry. Co. v. Pacific Coast Lumber Manufacturers' Ass'n, 165 F. 1, 9, 91 C.C.A. 39.

The only ground on which jurisdiction could have been retained in Watson, Adm'x, v. St. Louis, etc., Ry. Co. (C.C.) 169 F. 942, is that that case, in which it was sought to recover damages under the employer's liability act, arose under a law of Congress, and that its correct decision depended upon a construction of that law, for in that case there was no averment of diverse citizenship.

Act March 3, 1887, c. 373, Sec. 1, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 866, Sec. 1, ...