Southern Pac Co v. Stewart

Citation245 U.S. 359,38 S.Ct. 130,62 L.Ed. 345
Decision Date17 December 1917
Docket NumberNo. 348,348
PartiesSOUTHERN PAC. CO. v. STEWART
CourtUnited States Supreme Court

Messrs. Henley C. Booth and William F. Herrin, both of San Francisco, Cal., for plaintiff in error.

Mr. Thomas Armstrong, Jr., of Phoenix, Ariz., for defendant in error.

Mr. Justice DAY delivered the opinion of the Court.

Frank R. Stewart began this action against the Southern Pacific Company, a common carrier, in the superior court of Arizona for the county of Maricopa. In his complaint he set out that he delivered certain cattle to the Southern Pacific Company to be carried from San Luis Obispo, California, to Phoenix, Arizona, in consideration of the freight to be paid to the company as measured by the rate applicable to the shipment and carriage of live stock in carload lots from the point of shipment to the point of destination as the same was published and on file with the Interstate Commerce Commission. The complaint alleged that in consideration of the freight charges the company undertook to deliver the cattle in good condition at Phoenix, Arizona, and set forth that the cattle were handled and transported in such a negligent and careless manner that five of them died in Yuma, Arizona, a station on the line of the company; that the remainder were delivered to the plaintiff at Phoenix, Arizona, in such injured condition that six more of them died, and eighty-seven of them were seriously injured, and depreciated in value as a result of negligent handling and transportation of the cattle as set forth in the complaint.

The company upon petition and bond duly filed removed the case to the United States District Court for the District of Arizona, the same was tried in the District Court, and resulted in a verdict and judgment against the company, which was affirmed by the United States Circuit Court of Appeals for the Ninth Circuit; a writ of error brings the case here.

The case is before us on motion to dismiss on the ground that the judgment of the Circuit Court of Appeals is final. The judgment of the Circuit Court of Appeals is final, among other cases, in those in which the jurisdiction meaning that of the District Court, is dependent entirely upon the opposite parties to the suit or controversy being citizens of different states. Judicial Code, § 128, 36 Stat. 1157.

The removal to the District Court of the United States was made upon a petition which set forth as a ground for removal the diversity of citizenship of the parties; no other ground for removal was in any manner alleged in the petition.

A suit is removable from a state court to the United States District Court when it arises under the Constitution or laws of the United States, or treaties made under their authority, of which the District Courts of the United States are given original jurisdiction; any other suit of a civil nature at law or in equity, of which the District Courts of the United States are given jurisdiction may be removed into the District Court of the United States by the defendant, or defendants, being nonresidents of the state. Judicial Code, § 28.

By the amendment of January 20, 1914, 38 Stat. 278, it is provided that no suit brought in any state court of competent jurisdiction against a railroad company, or other common carrier, to recover damages for delay, loss of, or injury to property received for transportation by such common carrier, under section 20 (which includes the Carmack Amendment) of the act to regulate interstate commerce as amended, shall be removed to any court of the United States where the amount in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000. In this case the plaintiff sought to recover more than $3,000, and in view of the allegations of the complaint it may be conceded that the action being for loss or injury to cattle shipped in interstate commerce for transportation by a common carrier this suit is one which arose under a law of the United States, and might have been removed to a federal court on that ground. See Northern Pacific R. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905; Georgia, F. & A. R. Co. v. Blish Mill Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; St. Louis Iron Mt. & Southern R. R. Co. v. Starbird, Adm'r, 243 U. S. 592, 595, 596, 597, 37 Sup. Ct. 462, 61 L. Ed. 917.

The Carmack Amendment requires the carrier receiving property for transportation between points in different states to issue a receipt or bill of lading therefor and makes the carrier liable to the lawful holder thereof for any loss, damage or injury to such property. While there is no specific allegation in the complaint that such bill of lading or receipt was issued, as the law makes it the duty of the carrier to issue the same the presumption is that such duty was complied with. Cincinnati, N. O. & T. P. R. Co. v. Rankin, supra, 241 U. S. 319, 327, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265; N. Y. Central, etc., R. R. v. Beaham, 242 U. S. 148, 151, 37 Sup. Ct. 43, 61 L. Ed. 210.

While it thus appears that the suit might have been removed to the federal court because of the federal nature of the cause of action upon which it was brought, it was nevertheless within the jurisdiction of the state court, and that court might have proceeded to final judgment had not the defendant seen fit to remove the suit to the federal court.

Congress has not only provided for classes of cases wherein removal may be effected from the state to the federal courts, but has provided process by which such removals may be effected. Section 29 of the Judicial Code provides that the party desiring to remove the suit from the state court to the United States District Court may apply for removal by petition duly verified in the suit in the state court, at the time, or at any time before the defendant is required by the laws of the state or the rules of the court to answer or plead to the declaration of the plaintiff. Provision is also made for the filing of a bond requiring that the defendant shall enter in the District Court of the United States within thirty days of filing such petition a certified copy...

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  • Van Horn v. Western Elec. Co.
    • United States
    • U.S. District Court — Western District of Michigan
    • January 5, 1977
    ...is intended to set forth in proper form the ground of removal already imperfectly stated." Southern Pacific Co. v. Stewart, 245 U.S. 359, 363, 38 S.Ct. 130, 131, 62 L.Ed. 345 (1917). Thus, Kinney did not allow an amendment to supply allegations necessary to establish the removability of the......
  • Matarazzo v. Hustis
    • United States
    • U.S. District Court — Northern District of New York
    • March 18, 1919
    ... ... facts, and that motion to amend is granted. Wilbur v ... R.J.C.C. & C. Co. (C.C.) 153 F. 662, 664; Southern ... Pac., etc., v. Stewart, 245 U.S. 359, 363, 38 Sup.Ct ... 130, 203, 62 L.Ed. 345, 472 ... On the ... main question the plaintiff ... ...
  • Yarbrough v. Blake
    • United States
    • U.S. District Court — Western District of Arkansas
    • January 8, 1963
    ...has been permitted in this district. The boundary adverted to by Kinney has been described in Southern Pacific Co. v. Stewart, 245 U.S. 359, at p. 363, 38 S.Ct. 130, at p. 131, 62 L.Ed. 345 (1917) where the court "`Amendments have been permitted so as to make the allegations more accurate a......
  • F & L DRUG CORP. v. American Central Insurance Co.
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    • U.S. District Court — District of Connecticut
    • December 15, 1961
    ...been permitted in this district.3 The boundary adverted to by Kinney has been described in Southern Pacific Co. v. Stewart, 245 U.S. 359, at p. 363, 38 S.Ct. 130, at p. 131, 62 L.Ed. 345 (1917) where the court "Amendments have been permitted so as to make the allegations more accurate and c......
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