Stephenson v. Grand Trunk Western R. Co.

• Decision Date: 03 June 1940
• Docket Number: 6983.,No. 6982,6982
• Parties: STEPHENSON v. GRAND TRUNK WESTERN R. CO. (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

132 ALR 455, 110 F.2d 401 (1940)

STEPHENSON v. GRAND TRUNK WESTERN R. CO. (two cases).

Nos. 6982, 6983.

Circuit Court of Appeals, Seventh Circuit.

February 23, 1940.

Rehearing Denied April 1, 1940.

Writ of Certiorari Granted June 3, 1940.

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Douglas C. Moir, George B. Christensen, and William C. Mulligan, all of Chicago, Ill. (Winston, Strawn & Shaw, of Chicago, Ill., of counsel), for appellant.

Leslie H. Vogel, John R. Whitman, and DeForest P. Davis, all of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

Writ of Certiorari Granted June 3, 1940. See 60 S.Ct. 1101, 84 L.Ed. ___.

MAJOR, Circuit Judge.

These appeals are from judgments awarding damages in actions predicated upon the wrongful death of the plaintiff's intestates, her husband and infant son. The cases were commenced separately, consolidated for trial in the lower court and are joined in this appeal by stipulation of the parties.

Plaintiff's husband, Bart A. Stephenson, and their ten year old son, Stuart B. Stephenson, were killed in a collision between defendant's train and the Ford automobile in which they were riding. The collision occurred on October 15, 1937, at about 12:30 A. M. on Capitol Avenue (Michigan Highway 67) in Battle Creek, Michigan, where the avenue intersects the two-track main line of defendant's railroad approximately at right angles.

At the time of the collision, Stephenson, accompanied by his son, was driving his car in a southerly direction along Capitol Avenue. Defendant's passenger train No. 14 was traveling in an easterly direction toward the Battle Creek station, which is located about five blocks east of Capitol Avenue. The train, carrying eight cars, of which three were Pullmans, had come from Chicago and was scheduled to make a regular stop at Battle Creek at 12:25 A. M. Battle Creek, a division point of defendant's railroad, has a population of between 45,000 and 47,000.

Complaints were filed in the District Court of the United States for the Northern District of Illinois, Eastern Division. Numerous acts of negligence were charged, which will be discussed in subsequent paragraphs, and in connection therewith, a statement of the evidence relative thereto.

The contested issues to summarize, contend (1) that the District Court had no jurisdiction to hear or try the issues since the laws of the State of Illinois prohibited the bringing of such actions in the courts of this state and the "Rule of Decision Act" requires the Federal Courts in this state to adopt a similar rule, (2) that the verdict in each case is against the manifest weight of the evidence. (In this connection, it is argued that the defendant was guilty of no negligence and, that Stephenson, the driver of the automobile, was guilty of contributory negligence), (3) that the court erred in submitting the cause to the jury on counts of the complaint concerning which there was no supporting evidence, (4) that there was erroneous admission of testimony, (5) that counsel for the plaintiff was guilty of prejudicial misconduct, and (6) that the court erred in its charge to the jury.

We first shall consider the jurisdictional question. The Illinois Statute (Revised Stat.1937, Ch. 70, § 2) creating a cause of action for death resulting from a wrongful act, contains the following proviso: "Provided, further, that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place."

The language "no action shall be brought or prosecuted in this state to recover damages for death occurring outside of this state" was enacted as an amendment in 1903 and the remainder of the proviso by amendment of 1935. The Supreme Court of Illinois has construed this proviso to forbid the bringing or the prosecution of any action in the State of Illinois to recover damages for a death by wrongful act occurring outside the state.¹

It is defendant's contention that the state thus having established its public policy in this respect, a federal court sitting in the state is bound thereby. In other words, that the law of Illinois which precludes its own courts from taking jurisdiction, likewise precludes the federal court. Plaintiff, in meeting this contention, relies upon Section 24(1) of the Judicial Code, U.S.C.A., Title 28, Section 41(1), which provides:

"The district courts shall have original jurisdiction as follows:

"First. Of all suits of a civil nature, at common law or in equity * * * where the matter in controversy exceeds * * * the sum or value of $3,000, and * * * is between citizens of different States * * *."

We do not think defendant's contention in this respect is tenable. True, there is some contrariety of expression in the decisions, but it is apparent that none goes to the extent of holding that the public policy of a state can deprive a federal court of jurisdiction because it sits therein. It would serve no good purpose for us to analyze the various authorities relied upon by the parties. We assemble in a footnote some of those relied upon by the defendant² as well as those relied upon by the plaintiff.³

While it is true there is some support in the authorities for the proposition that the courts of one state will not take jurisdiction of a cause of action arising in another state, when to do so would violate the former's public policy, we do not think that such public policy has been or can be directed at a federal court upon a matter of jurisdiction. In the early case of Chicago & N. W. Railway Company v. Whitton, 80 U.S. 270, 20 L.Ed. 571, the court was construing a state statute which confined jurisdiction exclusively to the state court. In discussing whether this provision deprived the federal court of jurisdiction, the court, 80 U.S. on page 286, 20 L.Ed. 571, said: "* * * In all cases, where a general right is thus conferred, it can be enforced in any Federal court within the State having jurisdiction of the parties. It cannot be withdrawn from the cognizance of such Federal court by any provision of State legislation that it shall only be enforced in a State court. * * *"

In the instant suit, there is no question raised as to diversity of citizenship, or the requisite amount Congress has conferred upon the District Courts of the United States.

It must be remembered that jurisdiction of federal courts is solely a matter of congressional bestowal, and not subject to limitation by any other governmental agency. As was said in Barrow Steamship Co. v. Kane, 170 U.S. 100, 111, 18 S.Ct. 526, 530, 42 L.Ed. 964: "The jurisdiction so conferred upon the national courts cannot be abridged or impaired by any statute of a state. * * *"

In that case it was argued that the jurisdiction of the federal court sitting in New York was contingent upon action by the Legislature of the state. In disposing of such contention, the court, 170 U.S. on page 112, 18 S.Ct. at page 530, 42 L.Ed. 964, said: "* * * The action was within the general jurisdiction conferred by congress upon the circuit courts of the United States. The fact that the legislature of the state of New York has not seen fit to authorize like suits to be brought in its own courts by citizens and residents of other states cannot deprive such citizens of their right to invoke the jurisdiction of the national courts under the constitution and laws of the United States."

Again, in Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850, the court had before it a jurisdictional question, and while the facts are foreign to those in the instant case, yet we think an applicable rule is announced. On page 197 of 294 U.S., 55 S.Ct. at page 390, 79 L.Ed. 850, the court said: "* * * Its authority as a federal court to entertain the suit is not restricted by the procedure established by local statutes for the liquidation of insurance companies. The jurisdiction conferred on the District Courts by the Constitution and laws of the United States cannot be affected by state legislation. * * *"

Defendant argues that the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, requires a federal court to follow a state policy as expressed in legislative enactment, or the decisions of its courts. We do not think this case has any application, even though the court was considering the construction to be given section 34 of the Federal Judiciary Act, 28 U.S.C. § 725, 28 U.S.C.A. § 725. The gist of that opinion is found in the statement of the court on page 78 of 304 U.S., 58 S.Ct. at page 822, 82 L.Ed. 1188, 114 A.L.R. 1487: "Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. * * *"

It will be observed that "matters governed by the Federal Constitution or by Acts of Congress" are excepted, as might be expected. It also was pointed out on the following page, 304 U.S. at page 79, 58 S.Ct. at page 822, 82 L.Ed. 1188, 114 A.L.R. 1487: "* * * Supervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specifically authorized or delegated to the United States. * * *"

If Congress or the federal courts have no power of supervision over the state, when acting through its Legislature or its courts, it must be equally true that the latter is without power of control or supervision over the federal courts. That which was held in the Tompkins case must be confined, we think, solely to matters of substance and not of jurisdiction. To hold otherwise would lead...