Strother v. Union Pac. R. Co.

• Decision Date: 01 March 1915
• Docket Number: 4222.
• Citation: 220 F. 731
• Parties: STROTHER v. UNION PAC. R. CO.
• Court: U.S. District Court — Western District of Missouri

220 F. 731

STROTHER v. UNION PAC. R. CO.

No. 4222.

United States District Court, W.D. Missouri, Western Division.

March 1, 1915

C. W Prince, of Kansas City, Mo., for plaintiff.

Watson Watson & Alford, of Kansas City, Mo., for defendant.

VAN VALKENBURGH, District Judge.

The above-entitled action was commenced in the circuit court of Jackson county, Mo., at Kansas City. On petition of defendant it was removed to this court. Plaintiff now moves to remand the case, on the ground that under section 6 of the Employers' Liability Act (36 Stat. 291, c. 143), the removal is not permitted. Said section 6 is as follows:

'Under this act an action may be brought in a Circuit Court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.'

The complainant in the first count states a cause of action arising under the federal Employers' Liability Act, and in the second count one arising under the statutory law of the state of Kansas. Each count declares upon the same physical injury, which resulted in death. This suit was instituted by complainant as administrator of the estate of the deceased. Said administrator is a citizen and resident of the Western division of the Western district of Missouri. Defendant is a corporation duly organized and existing under the laws of the state of Utah.

The statute above quoted provides that no case arising under the Employers' Liability Act and brought in any state court of competent jurisdiction shall be removed. By 'case' is, of course, meant cause of action; and this is true although the petition in the same count may state facts disclosing a good cause of action under a state statute or at common law. Missouri, Kansas & Texas Railroad Company v. Wulf, 226 U.S. 570, 33 Sup.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 134; Wabash Railroad Company v. Hayes, 234 U.S. 86, 34 Sup.Ct. 729, 58 L.Ed. 1226; Ullrich v. New York, New Haven & Hartford Railroad Company (D.C.) 193 F. 768. If at the trial the proofs demonstrate that the injury arose outside of interstate commerce, and, therefore, that no recovery could be had under the federal act, the declaration may be amended, or regarded as amended, to conform to the proofs, and a recovery permitted under the statutory or common law, if the petition contains the necessary allegations. In such case, it is intimated that the plaintiff may not deprive the defendant of a right of removal otherwise existing, although whether that relief should be granted in the court below, if seasonably urged, or in the appellate court, if the point be preserved, or in both such courts, is left undecided. Wabash Railroad Company v. Hayes, supra. Enough is said, however, to indicate the recognition of a right to such relief.

If a cause of action arising under the federal act is coupled with one arising under...