St. Louis-San Francisco Railway Co. v. Boudreaux

• Decision Date: 09 July 1923
• Docket Number: 113
• Citation: 252 S.W. 913,159 Ark. 684
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY CO. v. BOUDREAUX
• Court: Arkansas Supreme Court

252 S.W. 913

159 Ark. 684

ST. LOUIS-SAN FRANCISCO RAILWAY CO. v. BOUDREAUX

No. 113

Supreme Court of Arkansas

July 9, 1923

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed.

Judgment reversed and cause remanded.

W F. Evans and Warner, Hardin & Warner, for appellant.

It was reversible error to deny appellant's petition for removal to the United States District Court. The allegations of the petition for removal can alone be looked to in determining the right to removal. If the allegations of the complaint are in conflict therewith, they must be ignored. 75 Ark. 116; 87 Ark. 136; 98 Ark. 509; 122 U.S. 514. The second count of the complaint alleged generalities and conclusions of fact and law, and was insufficient to state a cause of action under the Federal Employers' Liability Act. Conclusions cannot be pleaded. 121 Ark. 194; 147 Ark. 362. An employee repairing an engine is not within the purview of the Federal statute unless the engine being repaired is exclusively devoted or assigned to the movement of interstate traffic. (U. S.) 61 Law ed. 358; 62 Id. 925; 1 Roberts, F. Liabil. Carriers, §§ 488-489. Decisions of the Federal courts govern and control in all actions based on the Federal statute. 129 Ark. 520, 534. Even if the engine had been devoted and assigned exclusively to interstate transportation, under the allegations of the complaint it had been withdrawn therefrom, and the Federal statute had no application. U. S. S.Ct. Adv. Ops., July 1, 1922, p. 591. Both the carrier and the injured employee must have been engaged in interstate transportation at the time of the injury, to authorize a recovery under the Federal Employers' Liability Act. (U. S.) 58 Law ed. 1051, Ann Cases 1914-C, 163; 124 Ark. 127; 202 F. 766; 108 P. 774; 118 N.E. 986; 179 F. 175; 105 N.E. 1025; 106 N.E. 369. Where there are two causes of action alleged in one complaint, and one is removable on the ground of diversity of citizenship and the other not, the cause is removable to the Federal court. 127 Ark. 170, 178; 220 F. 731; 229 F. 319; 245 F. 788; 247 F. 233; 203 F. 1021; 2 Roberts F. Liabilities, § 657, p. 1150 et al.

Sizer & Gardner and G. L. Grant, for appellee.

There was an allegation in the complaint bringing the case squarely within the Federal Employers' Liability Act, and it was therefore not removable. When an employee is engaged alternately in interstate and intra-state commerce, and is injured, the presumption is that he was employed in intra-state commerce at the time he was injured; and the burden of proving that he was not so engaged at the time of the injury rests upon the party alleging it--in this instance upon the appellant. 256 U.S. 332. The question of whether the case was removable is to be tried and considered as of the time the petition for removal was filed. 200 U.S. 206; 108 U.S. 561. A complaint may be so drawn as to allow a recovery under both the State and Federal law, and making the case non-removable. 246 U.S. 276; N.Y.C. Ry. Co. v. Kennedy, U. S.Ct. Adv. Ops., January 1, 1923. The Federal Employers' Liability Act superseded all State laws on the subject, and person injured while employed in interstate commerce has but one cause of action, supra; 246 U.S. 653; 238 U.S. 599; 192 F. 353; 193 F. 768; 203 F. 580; 247 F. 819; 276 F. 337; 226 U.S. 570. Where a cause of action is stated in the alternative, as in this case, it is not removable. 236 F. 584; 223 F. 448. As to the sufficiency of the complaint to state a cause of action under the Federal Employers' Liability Act, see Wabash Ry. Co. v. Hays, 234 U.S.; 201 F. 591, 594; 238 U.S. 602. Before the trial court is compelled to remove such a case as this to the Federal court, the petition must show that the allegations in the complaint bringing the case within the Federal act are fraudulently inserted for the purpose of defeating the defendant of his right to a removal; and the showing of fraud must consist of a statement of facts from which that conclusion may rightfully be drawn. 227 U.S. 184; 234 U.S. 146; 246 U.S. 276. The act of Congress is a limitation upon the jurisdiction of the Federal district courts as a class with respect to trying cases that arise under the Federal act. 227 F. 819; 208 F. 29; Lewis, Removal of Causes, 164. The plaintiff was entitled to have the State court decide whether a cause of action was stated under the Federal act. 216 F. 801.

OPINION

HUMPHREYS, J.

Appellee instituted this suit against appellant in the circuit court of Crawford County, to recover damages for an injury received through the alleged negligence of appellant on January 30, 1921, in its shops at Afton, Oklahoma, while employed by and engaged in placing a spring in engine No. 1262, in pit No. 4. Omitting formal parts, the complaint is as follows:

"1. That the plaintiff is a citizen of the State of Missouri, and resides in Monett, in said State.

"2. That the defendant is a railway corporation, created and existing under and by virtue of the laws of the State of Missouri, and therefore resides in said State, but is licensed to do business in the State of Arkansas, and that upon all days named herein it was operating a line of railway in this State; that it also operates a line of railway in the State of Oklahoma, said line passing through the town of Afton, Oklahoma, and was doing so on all days named herein.

"3. That on or about the 30th day of January, 1921 (the exact date being unknown to the plaintiff but well known to the defendant), the plaintiff was employed by the defendant at the town of Afton, in the State of Oklahoma, as a machinist and mechanic in repairing engines and train equipment; that while in the performance of his duties, engaged in repairing defendant's engine No. 1262, at pit No. 4, it became and was necessary to put in a main left back driving spring on said engine; that in order to put said spring in it became and was necessary for the plaintiff to go under the engine; that he did so, and in placing said spring in proper place he rested said spring upon the brake-rigging under said engine, and requested the foreman over him, H. L. Foley, to furnish assistance to aid him in properly placing said spring in position in said engine; that the said Foley in person undertook to assist the plaintiff in placing said spring; that thereupon this plaintiff raised said spring upon the frame, at the time advising said foreman not to undertake to move it until the plaintiff advised him to do so; that, as the plaintiff attempted to raise said spring, the said foreman, without being ordered to do so by the plaintiff, and without right, prematurely, carelessly and negligently shoved a jack lever bar up against said spring, and by the force of such shove pushed and shoved the said spring upon this plaintiff; that the said spring was heavy, and fell with great weight upon this plaintiff while he was stooped over, thereby injuring the plaintiff and wounding him in his back, body, limbs and spine, and otherwise internally and externally injuring and damaging him, and also caused him to have curvature of the spine, from all of which he has been caused to suffer great mental and physical pain, to lose time, and have medicines and medical attention, and he will be compelled to lose time, to suffer great physical and mental pain and to spend money for medicines and medical attention for all time to come, and he is permanently injured.

"4. That the said foreman, Foley, negligently shoved the said spring upon this plaintiff, and without warning the plaintiff that he was going to do so; that the said foreman also negligently used a jack lever bar to handle said spring, the said bar being blunt and too large to fit into the eyes of the spring to hold it, said bar not being the tool usually used or proper to be used in doing what the said Foley was attempting to do; that by using a buggy bar or some other similar tool, small enough to pass through the eye of the spring, which was a proper tool with which to do such work, it would have hooked into the eye of the spring and held it in position, and would not have shoved it and caused it to fall upon the plaintiff. That in holding the spring as he did the said foreman, Foley, and the said defendant failed to furnish the plaintiff with a reasonably safe place in which to work, and negligently failed to exercise ordinary care to do so, and negligently failed to exercise ordinary care to furnish safe and proper tools and appliances with which to do the work.

"5. The plaintiff further states that, by reason of the aforesaid carelessness and negligence of the defendant and its said foreman, Foley, he has been seriously and permanently injured and damaged, as herein set out, in the sum of fifty thousand dollars, for which sum he prays judgment, and for costs and all proper relief."

SECOND COUNT.

"The plaintiff, for a further cause of action against the said defendant, states:

"1. That he makes paragraphs 1, 2, 3, 4, and 5 a part of this paragraph the same as if they were specifically set out herein, word for word.

"2. That the said engine No. 1262, upon which he was working at the time he was injured, as above set out, was a regular road engine of the defendant, and was used by it in hauling and moving and conducting its interstate commerce business; that the said engine was being, prepared by the plaintiff for the defendant so that it could move freight and pull its trains in interstate commerce; that at the time the plaintiff was injured he was employed by the defendant in interstate commerce, and the defendant was engaged in interstate commerce, and intended to use said engine for that purpose.

"That by reason of the injuries aforesaid, caused by the carelessness and negligence of the defendant...