Smithson v. Chicago Great Western Railway Company
| Decision Date | 14 January 1898 |
| Docket Number | 10,922 - (224) |
| Citation | 73 N.W. 853,71 Minn. 216 |
| Parties | JOHN SMITHSON v. CHICAGO GREAT WESTERN RAILWAY COMPANY and Others |
| Court | Minnesota Supreme Court |
Action begun October 2, 1895, in the district court for Ramsey county against the defendant railway company, and the receivers of the Wisconsin Central Company and of the Wisconsin Central Railroad Company, to recover $25,000 for personal injuries suffered by plaintiff on March 7, 1894 while employed as fireman by the Chicago Great Western Railway Company.
On October 22, 1895, defendant receivers filed their petition for removal of the case to the United States circuit court in which they stated that the Chicago Great Western Railway Company was organized under the laws of Illinois, was a citizen of that state and was not a real party in said action, but was made a party defendant therein for the sole purpose of preventing the removal of the case to the federal court, and that the issues between the plaintiff and that company and between plaintiff and the petitioning receivers were separable and could not be tried as one issue. These allegations were denied by the plaintiff's answer to the petition. On November 2, 1895, the district court, Kerr, J ordered the removal of the case to the federal court. On February 6, 1896, the circuit court, Nelson, J., remanded the case to the state court by the following order:
The proceedings narrated in the opinion were thereafter taken at the trial in the state court. The court, Willis, J., directed a verdict in favor of the Chicago Great Western Railway Company, while the jury returned a verdict against defendant receivers in the sum of $12,500. From a judgment against the defendant receivers entered upon this verdict, they appealed. Affirmed.
United States Court -- Decision Remanding Case to State Court Final.
When a circuit court of the United States decides that a cause has been improperly removed from a state court, and orders that such cause be remanded, the decision is final, under the federal statute. No appeal or writ of error from such decision is allowed.
United States Court -- Removal of Case to Federal Court -- Waiver by Defendant.
A defendant entitled to have his case removed from a state to a federal court, or from the latter to the former, there being no question of jurisdiction over the subject-matter or over the parties, may waive his rights to insist upon a removal by his acts or omissions.
United States Court -- Effect of Stipulation.
It is held that a stipulation entered into between counsel for appellants and respondent, while the former were in default for want of answer, settled the controversy as to appellants' right to have the case tried in the federal court, and that thereby the place of trial was fixed in the state court.
Railway -- Violation of Rules Governing Employees -- Evidence of Negligence -- Personal Injuries.
The fact that certain rules promulgated and put in force for the guidance and government of railway employees, while operating locomotives, have been violated, may be shown upon the trial of an action for personal injuries received by an employee, said to have been caused by such violation, and the fact may be considered as evidence tending to establish negligence of the defendant.
Railway -- Private Rules and Public Statutes or Ordinances -- Compliance with Former Not Necessarily Reasonable Care -- Violation of Latter Not Necessarily Negligence.
But such rules do not stand on the same footing as statutes or municipal ordinances, in the nature of police regulations, for the protection of the public or some particular class of persons. The law, statutory or municipal, if valid, fixes the legal standard of duty to those for whose protection it was designed, while private rules may require either more or less than is required by law. Compliance with the latter would not necessarily constitute reasonable care, nor would the violation thereof necessarily constitute negligence.
Personal Injuries -- Servant of One Railway Injured by Servants of Another Company -- Negligence -- Charge of Court Erroneous.
On the trial of an action for personal injuries alleged to have been received by plaintiff while employed as a locomotive fireman by one company, through the negligence of the men in charge of the locomotive of another company, and in a collision, both companies using the same tracks, owned by a third company, the rules promulgated by the latter for the government of all trainmen using the tracks were put in evidence, together with proof that one or more of these rules were being violated by defendants' (appellants') employees when the collision occurred. The court charged that, if the jury should find from the evidence that the rules were being violated when the collision took place, they might consider defendants' negligence as established. Held, that this was error.
Personal Injuries -- Error without Prejudice.
But such an instruction is held to have been error without prejudice, for the reason that, upon the undisputed evidence as to the facts and circumstances surrounding the collision, the trial court would have been justified in charging the jury that defendants' negligence was established as a matter of law.
McDonald & Barnard and Thos. H. Gill, for appellants.
The receivers sought a removal of the action: (1) On the ground of nonresidence; (2) on the ground that the action was brought against them as officers deriving their authority from federal laws and for official acts exercised by appointment under federal laws; and (3) because there was a separable controversy between plaintiff and the receivers.
If the receivers had been sole defendants, the action would have been unquestionably removable by reason of nonresidence, and because the action was to recover against them as receivers of a federal court. Texas v. Cox, 145 U.S. 593; Rouse v. Hornsby, 161 U.S. 588; White v. Ewing, 159 U.S. 36. The cause of action as between plaintiff and the receivers was separable in the sense of the removal statute. Trowbridge v. Forepaugh, 14 Minn. 100 (133); Langevin v. City, 49 Minn. 189; Berg v. Stanhope, 43 Minn. 176. Therefore appellants as nonresidents had an absolute right of removal. Ayres v. Wiswall, 112 U.S. 187; Beuttel v. Chicago, 26 F. 50; New York v. Simon, 53 F. 1; Barney v. Latham, 103 U.S. 205; Bacon v. Rives, 106 U.S. 99; Fergason v. Chicago, 63 F. 177; Over v. Lake Erie, 63 F. 34; Warax v. Cincinnati, 72 F. 637; Hukill v. Maysville, 72 F. 745; Hartshorn v. Atchison, 77 F. 9; 17 Am. & Eng. Enc. Law, 602, 604. As the complaint stated no legal cause of action against the defendant company, the receivers' right to remove is likewise unquestionable. Arrowsmith v. Nashville, 57 F. 165; Rivers v. Bradley, 53 F. 305; Nelson v. Hennessey, 33 F. 113. Even when the receivers are joined with another defendant, whether the cause of action is joint or several, their right to try the case in the federal court is unquestionable. White v. Ewing, supra; Texas v. Cox, supra; Landers v. Felton, 73 F. 311; Lund v. Chicago, 78 F. 385; Carpenter v. Northern Pacific, 75 F. 850; Lanning v. Osborne, 79 F. 657; McNulta v. Lochridge, 141 U.S. 327, 331; Jewett v. Whitcomb, 69 F. 417; Bock v. Perkins, 139 U.S. 628; Wood v. Drake, 70 F. 881; Rouse v. Hornsby, supra.
The order for remand, being based solely on the ground that there was no separable controversy, did not in any manner dispose of the receivers' right of removal on the ground that the action was against them in their official capacity. Though the order of remand settled the right of removal upon the ground of separable controversy, it did not and could not operate to restore to the state court its jurisdiction of the subject-matter and parties to the action. As soon as the bond and petition for removal were filed, showing on their face a removable cause of action, the jurisdiction of the state court was suspended upon both grounds asserted, and any act of the state court in the trial, before its suspended jurisdiction has been fully restored on both grounds, is void. If the remanding order had been general in its terms, the appellants would be bound by the rule that all questions raised had been passed upon, but, having been passed upon a specific ground, the order is effectual and final only as to rights asserted upon that ground.
The rights of appellants to remove were separate and distinct. If the jurisdiction were suspended upon both grounds by the actual removal, it remains suspended upon the second ground because the federal court has not yet determined that that was improperly invoked. Unless the jurisdiction of the state court was restored as to both grounds, that court was not in a position to hear the case. Hence resumption of entire jurisdiction is reviewable here, and if here denied reviewable in the supreme court of the United States. Missouri v. Fitzgerald, 160 U.S. 556; Carson v. Dunham, 121 U.S. 421; Union Pacific v. Harris, 15 S.Ct. 843, 63 F. 800. Had the receivers urged their right of removal only upon the ground of their appointment as federal officers under a federal law and had not raised the question of separable controversy or diverse citizenship, a remanding order based wholly upon the ground not relied on would not have been a decision on the other ground. In such a case subsequent proceedings in the state court are coram non judice. Stone v. South Carolina, 117 U.S. 430; Burlington v. Dunn, 122 U.S. 513; Removal Cases, 100 U.S. 457, 475; Railroad v. Koontz, 104 U.S. 5, 14; Wadleigh v. Standard, 76 Wis. 439, 442; Northern v. McMullen, 86 Wis. 501; Marshall v....
To continue reading
Request your trial