Toledo Traction Co. v. Cameron

• Citation: 137 F. 48
• Decision Date: 25 April 1905
• Docket Number: 1,374.
• Parties: TOLEDO TRACTION CO. v. CAMERON.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

137 F. 48

TOLEDO TRACTION CO. v. CAMERON.

No. 1,374.

United States Court of Appeals, Sixth Circuit.

April 25, 1905

[Copyrighted Material Omitted]

Barton Smith, for plaintiff in error.

Charles A. Thatcher, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

The plaintiff in the court below, by his guardian, brought this suit to recover the damages sustained by him in consequence of the alleged negligence of the defendant in the management of one of its cars in a street of Toledo, whereby he was knocked down, and one of his feet was crushed by the wheel of the car to such an extent that it became necessary to amputate the foot and part of the leg between the ankle and the knee. At the time of the occurrence the plaintiff was about two years old. He had strayed away from the house where he was staying at the time, and wandered into the middle of the street and upon the track of the defendant, a street car company; and while moving about near to the eastern rail he was struck by the forward right-hand corner of a car coming from the south and thrown down, and his foot was crushed as above stated. The accident happened in the daytime in a straight street, and with nothing to obscure the sight of the child from the motorman. The evidence in regard to the speed at which the car was running differed considerably. From some of it the jury might have found that the speed was 15 miles an hour, and the jury might also have found that the speed was not stopped or lessened as the car approached the plaintiff.

In the plaintiff's petition, in stating the grounds for the jurisdiction of the court, the following allegations were made:

'First. The said Joseph L. Cameron is a minor, and the said George L. Little has been duly appointed and qualified by the probate court of Monroe county, state of Michigan, as his guardian, and is now acting as such. The said minor and his said guardian are residents and citizens of said county of Monroe, in the said state of Michigan.

'Second. The said defendant, the Toledo Traction Company, is a corporation duly incorporated under the laws of the state of Ohio, and at the time of the happening of the grievances hereinafter set forth, and until the 10th day of August, 1901, owned and operated a line of street railway in the city of Toledo, a municipal corporation duly organized under the laws of said state of Ohio.' Another street railway company was joined as defendant, which, as was alleged, had since the accident purchased the railway of the Toledo Traction Company, and had assumed and agreed to pay all its debts and liabilities. Such proceedings were had that the suit was dismissed as to said purchasing company, and the suit was thereupon prosecuted against the Toledo Traction Company. Subsequent to the commencement of the suit, the plaintiff, by leave of the court, filed an 'amended petition,' concerning which we only need to say that it repeated the allegations respecting the citizenship to the plaintiff in the identical language of the original petition. To this amended petition the defendant, the Toledo Traction Company, answered, admitting its incorporation under the laws of Ohio, that it was operating the street railway at the time of the accident, and that the plaintiff's foot was injured by a wheel of the defendant's car, but denied 'each and every other statement and allegation in plaintiff's amended petition contained.'

The case has been three times tried before a jury. Upon the last trial the jury rendered the following verdict:

'We, the jury in this case, being duly impaneled and sworn, do find upon the issues joined for the plaintiff, and do assess his damages at the sum of six thousand and five hundred dollars ($6,500).

'O. P. Norris, Foreman.'

Judgment was entered accordingly. The defendant moved that the verdict and judgment be set aside and for a new trial, upon grounds, among which were two--one, that 'the verdict was not sustained by sufficient evidence'; and another, that 'the verdict is contrary to law.' As we gather from the record, upon the hearing of this motion counsel for defendant urged that upon the trial no evidence had been offered by the plaintiff to prove that either he or his guardian were at the commencement of the suit citizens of the state of Michigan. Thereupon counsel for the plaintiff requested the court to impanel a jury and receive evidence which he proposed to offer in support of his allegations of the citizenship of the plaintiff and his guardian, and the due appointment of the guardian. The court ordered the judgment to be set aside, but not the verdict. It also denied the plaintiff's request to impanel a jury to determine whether the plaintiff was a citizen of Michigan, and whether the guardian had been lawfully appointed, and directed the hearing on those questions to be had before the court itself. The plaintiff produced witnesses who gave testimony tending to prove his contentions in these respects, and no opposing testimony was offered on the part of the defendant. But the defendant strenuously opposed this inquiry, denying at every step the authority of the court to entertain the question at all after the jury trying the case had rendered their verdict and been discharged, or, if it had such authority, to assume to try the question itself without a jury, and excepted throughout to the action of the court. The court made a finding in favor of the plaintiff upon all the questions involved in the inquiry, and thereupon restored the judgment.

Several exceptions were taken by the defendant to rulings of the court upon the trial of the merits before the jury, which are stated in the opinion further on.

It is contended by counsel for the plaintiff in error that the court below did not acquire jurisdiction to try the case and render the judgment, and this challenge must first be attended to. Inasmuch as there are questions relating to the merits as well as to the jurisdiction, we may choose whether we will first certify the latter question to the Supreme Court, and, after receiving its answer, if that be in favor of the jurisdiction, proceed to determine the questions relating to the merits, or decide the whole case in the first instance. McLish v. Roff, 141 U.S. 661, 12 Sup.Ct. 118, 35 L.Ed. 893. And as it seems to us that the question of jurisdiction here presented is concluded by decisions of the Supreme Court already made, we adopt the latter course. The contention as made rests primarily upon the insufficiency of the showing that the plaintiff was at the commencement of the suit a citizen of Michigan. In our opinion, the citizenship of the guardian was unimportant upon the question of jurisdiction. The right of action was that of the plaintiff. The recovery belongs to him. The guardian is a mere protector of the plaintiff's interest, differing in this respect from an administrator or trustee in whom the legal title is vested. Williams v. Ritchey, 3 Dill. 406, Fed. Cas. No. 17,734; Woolridge v. McKenna (C.C.) 8 Fed. 650, 668; Wiggins v. Bethune (C.C.) 29 F. 51; Voss v. Neineber (C.C.) 68 F. 947.

Some embarrassment arises, though it has not been urged by counsel, upon the form of the allegation in the petition, which is that the plaintiff is a citizen 'of said county of Monroe, in the state of Michigan. ' It is certainly a very inexact form of allegation. But considering the purpose for which it is made, and the facts subsequently developed in the record, we think it right to construe the allegation as one importing that the plaintiff is a citizen of Michigan, residing in or being an inhabitant of the county of Monroe. As it stands, it has no other meaning having any significance to the citizenship required by the law of federal jurisdiction. Besides, the construction we are disposed to put upon this language has been the one which has been accepted and acted upon throughout the case by counsel on both sides and by the trial court. But the averment is helped out. In the finding of the court upon the special inquiry made by it, it is stated that 'the court finds, in favor of the plaintiff, that the said plaintiff, Joseph L. Cameron, and the said George L. Little were at the time of the commencement of this suit citizens and residents of the state of Michigan'; showing also, as we think, that the court treated the allegation as equivalent to one in due form. Thus it has served every purpose of a proper allegation. It is well settled that we may refer to the whole record to make out, if we fairly can, the conditions on which the jurisdiction may rest.

An objection upon which stress is laid by counsel for plaintiff in error is this: The case was tried upon the amended petition filed a considerable time after the commencement of the suit, and the language respecting the citizenship of the parties is in the present tense; repeating in this respect, as we have said, the words of the original petition. Counsel urge that the amended petition superseded the original, and becomes the only one to which the court can have regard, and upon this assumption it is said the showing is only that the proper citizenship existed at the time of filing the amended petition. But the court had already acquired jurisdiction upon the filing of the original petition and service of process, and it would not lose it by a mere amendment of the pleadings touching the merits of the case. A similar question was presented in Mexican Ry. Co. v. Pinkney, 149 U.S. 195, 13 Sup.Ct. 859, 37 L.Ed. 699, and received a similar answer. Besides, the original petition remains a part of the record, and may be looked into to find whether the necessary conditions appear for entertaining the suit.

It is further contended that there...