Thompson v. St. Louis-San Francisco Ry. Co.

• Decision Date: 06 February 1934
• Docket Number: No. 1809.,1809.
• Citation: 5 F. Supp. 785
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: THOMPSON v. ST. LOUIS-SAN FRANCISCO RY. CO. et al.

5 F. Supp. 785

THOMPSON v. ST. LOUIS-SAN FRANCISCO RY. CO. et al.

No. 1809.

District Court, N. D. Oklahoma.

February 6, 1934.

Bailey E. Bell, of Tulsa, Okl., for plaintiff.

Cruce, Franklin & Satterfield, of Oklahoma City, Okl., for defendants.

FRANKLIN E. KENNAMER, District Judge.

This action was originally filed in the District Court of Tulsa county, Okl., against St. Louis-San Francisco Railway Company, James M. Kurn, and John G. Lonsdale, receivers of St. Louis-San Francisco Railway Company, seeking the recovery of damages on account of an injury sustained by plaintiff. The cause was removed to this court upon the petition of James M. Kurn and John G. Lonsdale, receivers, reciting the fact of their appointment as receivers by the federal court. A motion to remand the cause has been interposed by the plaintiff and those portions of plaintiff's petition pertinent to a determination of the questions presented alone will be set out.

Plaintiff alleges that on or about the 5th day of May, 1932, he was employed as a special agent to inspect cars used in trains operated between points in Missouri, Oklahoma, and Texas, and that the trains he was required to ride upon and examine carried interstate shipments of commerce through these and other states; that plaintiff's injuries resulted from him being shot by enemies of the corporate defendant because of harsh treatment administered by special agents of the defendant corporation upon persons upon trains and right of way of the defendant; that the enmity of persons in and near the town of Claremore, Okl., was well known to plaintiff's superiors but was unknown to him, but that plaintiff, without knowledge of the conditions or the dangers, was directed to ride a passenger train to Claremore, Okl., and there to inspect the yards and to ride back to Tulsa on a freight train, and that while he was carrying out the orders, he started walking in the railway yards in the town of Claremore, Okl., and was there met by certain persons incensed against the defendant railway company, and shot with a revolver, striking plaintiff directly in the mouth. Plaintiff seeks to recover under the Federal Employers' Liability Act (45 USCA §§ 51-59), but also sought the recovery of punitive damages in the sum of $30,000 by alleging that the said railway system was being operated in violation of the laws of the state of Oklahoma and of the United States. Plaintiff dismissed his cause of action for punitive damages, leaving only for the consideration of the court his cause of action under the Federal Employers' Liability Act.

At the outset, it should be observed that the receivers were appointed for the corporation on November 2, 1932, several months after plaintiff suffered his alleged injuries.

Plaintiff insists (1) that the cause having been brought under the Federal Employers' Liability Act in the state court of Oklahoma, it is not removable because of the federal statute creating the Federal Employers' Liability Act; and (2) that actions instituted against receivers appointed by federal courts are not removable from the state to federal courts unless the action is directed personally against the receivers; and (3) that the injury having occurred prior to the appointment of receivers by the federal court, that the same is not removable.

The contentions asserted by the defendants are likewise three-fold. In the first place, it is urged that the allegations of plaintiff's petition show that plaintiff was not engaged in interstate commerce or in work so closely related to interstate transportation as to be practically a part of it, and that the action is therefore not governed by the Federal Employers' Liability Act (45 USCA §§ 51-59), and that the cause is removable on account of diversity of the citizenship between plaintiff and defendants, plaintiff being a resident of Oklahoma and the defendants being residents of Missouri. The second contention is that the action is removable to the federal court because the receivers appointed by this court are made parties-defendant, and that title 28 USCA § 76, provides for removal by officers of the federal courts of actions brought against them in the state courts. The last contention is that the action is removable to the federal court for the reason that plaintiff attempts to state two causes of action, one under the Federal Employers' Liability Act, and the other under the statutes of Oklahoma, or common law, in plaintiff's endeavor to seek punitive damages.

We are here concerned with the consideration of two statutes; one, that portion of the Federal Employers' Liability Act pertaining to the removal of causes, and the other, title 28 USCA § 76, relating to the removal of causes pending against officers of the courts of the United States. The pertinent section of the first statute, upon which plaintiff relies for a remand of the cause, is as follows:

USCA 45, c. 2, § 56, p. 515: "* * * Under this chapter an action may be brought in a district 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 chapter shall be concurrent with that of the courts of the several States, and no case arising under this chapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. (Apr. 22, 1908, c. 149, § 6, 35 Stat. 66; Apr. 5, 1910, c. 143, § 1, 36 Stat. 291.)"

The statute (28 USCA § 76) upon which the defendant receivers base their right of removal, is as follows:

"When any civil suit or criminal prosecution is commenced in any court of a State * * * against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court and in the following manner. * * *"

Before discussing the above statutory provision and considering the cases bearing upon the questions here presented, it is necessary to dispose of the other contentions relied upon by the parties.

It is first insisted that plaintiff has not set forth a cause of action in his petition under the Federal Employers' Liability Act. It is urged that plaintiff's petition discloses that plaintiff was engaged in work in intrastate commerce rather than in interstate, by reason of having pleaded that he was directed by his superior to proceed from Tulsa, Okl., to another point in Oklahoma, to wit, Claremore, upon a passenger train, and to inspect the cars and railway yards of the defendant company at Claremore, and upon the completion thereof to return to Tulsa upon a freight train. The defendants insist that the plaintiff, at the time of the injury, was not engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Numerous authorities are presented in support of this contention.

It is well established that the test for the determination of an injury arising under the Federal Employers' Liability Act is the nature of the work being done by the employee at the time of the injury, and further, in order to bring the cause under the federal act, the employee must have been engaged, at the time of the injury, in interstate transportation or in work so closely related to it as to be practically a part of it. New York Cent. R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. Numerous cases are reported applying the above principles of law to the facts in the particular case. It is often difficult to apply the above principles to the facts in a given case. The question is presented herein, but its decision is unnecessary in view of the conclusions set out hereafter. However, a review of the facts involved in some of the cases and the decisions thereon is enlightening.

A yard conductor on an interstate railway, injured while alighting from a slowly moving freight train, for the purpose of reporting to the yard master's office for further orders, was held not to have been employed in interstate commerce, although the orders which he would have received, had he not been injured, would have required him to make up an interstate train. Erie Railroad Company v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319. The reason for the decision is that the duties of the particular employee were restricted to the yard and his employment was held not to have been closely related to interstate transportation.

A night watchman, employed for the purpose of guarding tools and materials intended to be used in the construction of a railway station and tracks, was held not to have been engaged in interstate commerce, although such station and tracks were to have been used in interstate commerce when completed. New York Central Railway Company v. White, supra.

A police officer, employed by a railroad, was held not to have been engaged in interstate commerce at the time he was injured, even though at the time of injury he was investigating the theft of property which had been moving in interstate commerce. Delaware, L. & W. R. Co. v. Scales (C. C. A.) 18 F.(2d) 73. See, also, Kelly v. Pennsylvania R. Co. (C. C. A.) 238 F. 95; Alabama Great Southern Co. v. Bonner, 200 Ala. 228, 75 So. 986, 10 A. L. R. 1160; Chicago & Alton Ry. Co. v. Industrial Commission, 290 Ill. 599, 125 N. E. 378; Chicago, Rock Island & Pacific Railway Co. v. Industrial Board of Illinois, 273 Ill. 528, 113 N. E. 80, L. R. A. 1916F, page 540.

A fireman, employed by an interstate railway carrier on a switching engine, killed while aiding in the...