Tullar & Tullar v. Illinois Cent. R. Co.

• Decision Date: 28 April 1914
• Docket Number: 66.
• Citation: 213 F. 280
• Parties: TULLAR & TULLAR v. ILLINOIS CENT. R. CO.
• Court: U.S. District Court — Northern District of Iowa

213 F. 280

TULLAR & TULLAR v. ILLINOIS CENT. R. CO.

No. 66.

United States District Court, N.D. Iowa, Western Division.

April 28, 1914

Faville & Whitney, of Storm Lake, Iowa, for plaintiffs.

Helsell & Helsell, of Fort Dodge, Iowa, for defendant.

REED District Judge.

This action was commenced in the state court in July, 1913, by the plaintiffs to recover from the defendant railroad company less than $100. The petition is in two counts. The first claims $39 for the rental of a car, or freight exacted by the defendant from plaintiffs upon the shipment of a car load of live poultry from Storm Lake, Iowa, to Chicago, Ill., over defendant's road, in excess of the regular rate for such shipment, and $9 overcharge for switching the car in Chicago.

The second claims $47 as damages for the shrinkage in value and for expense of extra feed for, and care of, the poultry in transit, because of the alleged neglect of the defendant in failing to carry the car to its destination in due time. Judgment is asked for $90.75, with interest and costs.

The defendant removed the action to this court in November, 1913 upon the sole ground that the cause of action alleged in each count of the petition arises under the interstate commerce act of Congress as amended by that part of the act of June 29, 1906, commonly called the Carmack amendment.

The record has been filed in this court, and plaintiffs move to remand upon the ground that the cause of action alleged in each count of the petition is not one that arises under the act to regulate commerce or any amendment thereof, and that this court has no jurisdiction of the action.

Conceding without deciding, that the first count of the petition sufficiently shows upon its face that it is to recover for freight charged by defendant upon an interstate shipment of property in excess of the schedule of rates filed by it with the Interstate Commerce Commission, an action to recover alone for such claim might be upon a cause of action directly traceable to a violation of the act to regulate commerce under section 24(8) of the Judicial Code, and one that might be removed from the state court to this court under section 28 of that Code. But the second count, being for the recovery of damages arising from the alleged negligent delay of the defendant in carrying the shipment to its destination, is not upon a cause of action traceable to any violation of the act to regulate commerce, and the action to recover therefor, being for less than $3,000, is not one that may be removed from the state court to the federal court. Storm Lake Tub & Tank Factory v. M. & St. L. Ry. Co. (D.C.) 209 F. 895. And see Smeltzer v. St. Louis & S.F.R.R. Co. (C.C.) 168 F. 420-424.

Under the Iowa practice act, the plaintiffs may rightly sue the defendant upon both causes of action in one petition, alleging each cause of action in a separate count thereof as they have done. Code of Iowa (1897) Secs. 3545, 3559(5).

May this action, as so brought, be removed from the state court to this court? It is not removable either under the first or second clause of the removal act Section 28, Judicial Code. If removable at all, it must be under the third clause of that section, which reads in this way:

'And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district.'

This is the separable controversy clause of the removal act of March 3, 1875, c. 137, 18 Stat. 470, as amended by Act March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 509). It does not enlarge the previous clauses of the section which particularly specify the suits that may be removed from the state court, but provides only that, when, 'in any suits mentioned in this section,' there shall be a controversy which is wholly between citizens of different states, the suit may be removed by a defendant or defendants actually interested in such controversy to the proper federal court. Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; Coal Company v. Blatchford, 11 Wall. 172, 20 L.Ed. 179; Case of the Sewing Machine Cos., 18 Wall. 553, 574, 575, 21 L.Ed. 914; Blake v. McKim, 103 U.S. 336, 338, 26 L.Ed. 563; In re Pennsylvania Co., 137 U.S. 451, 11 Sup.Ct. 141, 34 L.Ed. 738; Mississippi Mills Co. v. Cohn, 150 U.S. 202, 209, 14 Sup.Ct. 75, 37 L.Ed. 1052; Mexican National R.R. Co. v. Davidson, 157 U.S. 201, 15 Sup.Ct. 563, 39 L.Ed. 672.

In Barney v. Latham, above, the suit was brought by the plaintiffs, citizens of Minnesota and Indiana, respectively, in the state court of Minnesota against a number of individuals, citizens of other states, and the Winona & St. Peter Land Company, a Minnesota corporation. The individual defendants removed the suit to the federal court upon the ground that there was a separable controversy therein between them and the plaintiffs, which could be fully determined as between them without the presence of the land company. The removal was upheld by the Supreme Court, upon the ground, alone, that the land company was not a necessary party to the suit, as between the plaintiffs and the individual defendants; though some of its stockholders might be interested in the result, the land company, as a corporation, was not. Upon the contention of the plaintiffs that the land company was a proper, though not an indispensable, party to the full determination of the controversy, Mr. Justice Harlan, speaking for the court, said:

'Those are matters more properly for the determination of the trial court--that is, the federal court-- after the cause is there docketed. If that court should be of opinion that the suit is obnoxious to the objection of multifariousness or misjoinder, and for that reason should require the pleadings to be reformed both as to subject-matter and parties, according to the rules and practice which obtain in the courts of the United States, and if, when that is done, the cause does not really and substantially involve a dispute or controversy within the jurisdiction of that court, it can * * * dismiss the suit, or remand it to the state court as justice requires.'

See, also, Blake v. McKim, 103 U.S. 336, 338, 26 L.Ed. 563.

The clause has no reference to suits upon different causes of action between a plaintiff and a single defendant, some of which causes are not cognizable in the courts of the United States; for these courts have no authority to determine any controversy not rightly within their jurisdiction.

Counsel for defendant cite McGoon v. Northern Pacific Ry. Co (D.C.) 204 F. 998, and a number of other cases, including Smith v. A., T. & S.F. Ry. Co. (D.C.) 210 F. 988 (decided October 29, 1913 but not reported until April 9, 1914, in 210 F. 988, and subsequent to the decision in Storm Lake Tub & Tank Factory v. M. & St. L. Ry. Co., above), and insist that the federal courts have exclusive jurisdiction of both causes of action...