Toledo, St. L. & W.R. Co. v. Perenchio

• Decision Date: 15 April 1913
• Docket Number: 1,952.
• Citation: 205 F. 472
• Parties: TOLEDO, ST. L. & W.R. CO. v. PERENCHIO.
• Court: U.S. Court of Appeals — Seventh Circuit

205 F. 472

TOLEDO, ST. L. & W.R. CO. v. PERENCHIO.

No. 1,952.

United States Court of Appeals, Seventh Circuit.

April 15, 1913

Charles E. Pope, of Chicago, Ill. (Chas. A. Schmettau, of Toledo Ohio, of counsel), for plaintiff in error.

Clark &amp Hutton, of Danville, Ill., and Trautmann, Flannigen, Baxter &amp Hamlin, of East St. Louis, Ill., for defendant in error.

Before BAKER and KOHLSAAT, Circuit Judges, and HUMPHREY, District judge.

BAKER Circuit Judge.

This writ of error is brought to reverse a judgment for personal injuries suffered by plaintiff (defendant in error) through the negligence of defendant. Pleadings on which the cause of action was submitted, evidence, instructions, verdict, and judgment had to do with a controversy between plaintiff and defendant alone. All assignments of error relating to the merits of that controversy were abandoned at the argument. Defendant relies solely upon a contention that an inseparable controversy between plaintiff on the one side and the defendant and another corporation on the other was improperly removed from a state court.

Plaintiff, a citizen of Illinois, was a night passenger at East St. Louis, Ill., on a street car of the Suburban Company, an Illinois corporation. Tracks of the Suburban Company and of defendant, an Indiana corporation, cross at right angles. While the street car was making the crossing, defendant backed a freight train against the street car, without sounding whistle or bell, without light, and without a lookout at the rear of the train or at the crossing. In an Illinois court plaintiff filed a declaration against both companies, charging that the collision occurred and her injuries were inflicted by reason of 'the joint negligence' (in one count) or 'the combined and concurring negligence' (in other counts) of the present defendant and the Suburban Company. Defendant obtained an order of removal into the federal court on the ground of separable controversy.

At the start of the trial plaintiff dismissed the Suburban Company and presented against this defendant alone a declaration in which the separate conduct of defendant was exclusively counted upon. Defendant, without objecting that it was not in court to litigate that separate cause of action, proceeded with the trial, cross-examined plaintiff's witnesses, moved for a directed verdict, introduced its own evidence, renewed its motion for a verdict, requested instructions, and moved for a new trial on the merits.

Granting that, within the authority of Alabama Southern Ry. Co. v. Thompson, 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147, Chesapeake, etc., Rld. Co. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121, Whitcomb v. Smithson, 175 U.S. 635, 20 Sup.Ct. 248, 44 L.Ed. 303, and Offner v. Chicago & E. Rld. Co., 148 F. 201, 78 C.C.A. 359, the case filed in the state court presented only inseparable controversies, only a joint cause of action against the two defendants therein, no several cause of action against the present defendant alone, we do not think it follows that the judgment on review should be reversed.

We come at once to the heart of the matter by supposing that the state court case had been remanded to, or had never been removed from, the state court, and then inquiring: Would the pendency of that case, or a finding therein that plaintiff's injuries were not inflicted by the joint acts of defendant and the Suburban Company, preclude plaintiff from prosecuting a separate case against defendant as the sole cause of her injuries? That question seems to us to carry its own answer.

In the declaration that was litigated the averments of the wrong, of the amount in controversy, and of the citizenship of the parties affirmatively and clearly presented a subject-matter that the federal court had lawful authority to hear Diversity of citizenship was a part of the subject-matter. In addition to the subject-matter being of a kind that the federal court had jurisdiction to entertain, it was necessary that the federal court acquire jurisdiction of the persons of the parties. Citizenship, relating as it does exclusively to jurisdiction of the subject-matter, has nothing to do with jurisdiction of the parties as such. Although 'agreement of parties cannot enlarge the Constitution and laws of the United States,' and thereby confer upon the federal court authority to determine a subject-matter not included in the grant of power, yet, if the subject-matter is within the grant to the federal court, jurisdiction of the parties may be acquired by consent or acquiescence. That is, jurisdiction of subject-matter relates exclusively to the right of the court to hear and decide; jurisdiction of parties concerns merely their personal privileges. So when plaintiff presented her new, distinct, separate controversy with defendant alone, defendant might have insisted that the case be given a new docket number, that the declaration be filed in the clerk's office, that summons be issued and served, that time be granted for settling the issues, and that the controversy be not submitted for trial until defendant had been given all of its personal rights. But defendant waived all such preliminaries, and, being in the court it selected to hear a controversy it now says was inseparable, asked the court to proceed with the hearing and determination of a...