Wabash Ry. Co. v. Bridal, 10851.

• Decision Date: 12 February 1938
• Docket Number: No. 10851.,10851.
• Citation: 94 F.2d 117
• Parties: WABASH RY. CO. v. BRIDAL.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F.2d 117 (1938)

WABASH RY. CO. v. BRIDAL.

No. 10851.

Circuit Court of Appeals, Eighth Circuit.

January 15, 1938.

Rehearing Denied February 12, 1938.

Homer Hall, of St. Louis, Mo. (N. S. Brown, of St. Louis, Mo., on the brief), for appellant.

Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton, of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellee, as plaintiff, brought this action in the court below to recover damages for personal injuries alleged to have been sustained by him while he was in the employ of the defendant as a railway brakeman. The petition as originally filed, after alleging that the defendant was engaged in the business of owning and operating a system of railroads as a common carrier in interstate commerce and for such purpose was doing business in the state of Missouri, with an office and place of business in the city of St. Louis, alleged: "Plaintiff further states that on or about the 12th day of June, 1930, he was in the employ of the defendant, working at or near Bloomfield, Iowa, engaged in the business of handling and switching defendant's railroad cars; that plaintiff while in the performance of his duty was upon a car; that while he was thereon, and while he was using a handbrake, said handbrake did fail to properly operate and the wheel thereof did spin and turn, causing plaintiff to be thrown from said car and injured as hereinafter described, all of which occurred as a result of the defendant's violation of the laws of the United States in such cases made and provided, and the amendments thereof." He asked for judgment in the sum of $45,000.

This petition was filed April 8, 1932, and on April 16, 1932, summons was served as shown by the marshal's return, upon Walter S. Franklin, Receiver for the Wabash Railway Company. On May 5, 1932, the defendant appeared specially and moved to quash the service of this summons because it had been served upon the receiver, and not upon an officer of the corporation. Plaintiff confessed this motion on May 9, 1932, and on his application an alias summons issued returnable May 29, 1932. Alias summons issued, but by reason of an apparent clerical error it was made returnable April 29th, although issued on May 9th. Defendant again entered special appearance and moved to quash, and plaintiff on June 8, 1932, confessed this motion and on his application pluries summons issued June 8, 1932, returnable June 28, 1932. This summons, as shown by the marshal's return, was served on the defendant in the city of St. Louis, by delivering a true and correct copy of the summons, with copy of the petition, to Walter Franklin, president of the defendant company. The summons was in the usual form and required the defendant to plead, answer, or demur on or before the twentieth day after service.

On June 27, 1932, before the return day, the defendant appearing specially, moved to dismiss the action and to quash the service and return for want of jurisdiction, basing its motion upon the ground that plaintiff pretended to state a cause of action under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., and that it was not suable in the District of Missouri because not doing business therein and not being a resident or citizen thereof. This motion, although filed, was not urged nor brought on for hearing, and on September 8, 1932, plaintiff filed a motion to strike defendant's motion to dismiss. On November 7, 1932, both of these motions were submitted. Nothing further seems to have been done in the matter until May 29, 1933, at which time plaintiff, by leave of court, filed an amended petition, and the court at that time ordered "that the submission of defendant's motion to dismiss cause for want of jurisdiction, as well as submission of plaintiff's motion to strike said motion of defendant from files, be, and the same are hereby vacated and set aside."

In his amended petition filed May 29, 1933, plaintiff specifically alleged that at the time of receiving his injuries he was engaged in the business of handling and moving defendant's train and railroad cars, and that he and defendant were engaged in interstate commerce and transportation at said time.

The next proceeding taken was on July 6, 1933, when defendant, appearing specially, filed its motion to dismiss for want of jurisdiction and to quash the summons and return, the jurisdiction of the court being challenged on the ground that plaintiff "attempts and pretends in said amended petition to state a cause of action under the provisions of Acts of Congress known as the Federal Employer's Liability Act and the Safety Appliance Act, and attempts and pretends to create and confer jurisdiction upon this court by alleging in his said amended petition that defendant is now `engaged in the business of owning and operating a system of railroads as a common carrier of passengers, goods and freight for hire in commerce between the several states of the United States, and as such and for such purposes defendant at all said times did and now does business in the State of Missouri, with an office and place of business in the City of St. Louis, Missouri,' and said petition further alleges that the injuries complained of were received by plaintiff at or near Bloomfield, Iowa, and not within the Eastern District of Missouri, and the defendant alleges and shows to the court that the allegation of plaintiff's amended petition that the defendant now does such business in the State of Missouri, and for such purposes has an office and place of business in the City of St. Louis, Missouri, was and is false," etc.; that the defendant was not a resident of the district or state of Missouri, but was a corporation organized and existing under the laws of the state of Indiana and was therefore a citizen and resident of that state and not of the state of Missouri.

The motion does not seem to have been brought on for hearing until October 16, 1934, when it was overruled, and thereafter, and on April 21, 1936 more than four years after the action had been commenced defendant, appearing specially and reserving its objections to the jurisdiction of the court, filed an amended answer, in which it challenged the court's jurisdiction on the same grounds set out in its motion to quash the service of summons and dismiss the action. It also controverted the allegations of the plaintiff's petition, pleaded contributory negligence, assumption of risk, and denied that plaintiff at the time of receiving his injuries was engaged in interstate transportation. When the original answer was filed, what allegations it contained, and whether the defendant therein appeared generally and pleaded to the merits of plaintiff's cause of action, do not appear.

The case was tried to a jury, resulting in a verdict in favor of the plaintiff for $14,000. From the judgment entered thereon defendant has perfected this appeal and seeks reversal on the grounds (1) that the court did not have jurisdiction over the defendant in the original action, as the plaintiff did not allege diversity of citizenship and it was not brought in the district where the defendant resided; (2) that, being a resident of the state of Indiana, it could not be sued in the District Court of Missouri for a violation of the Safety Appliance Act in the state of Iowa, even though it were doing business in the state of Missouri; (3) that the original petition was based upon the common-law doctrine of master and servant, unaffected by the Federal Employers' Liability Act, and it was not alleged in the original petition that the defendant or the plaintiff was engaged in interstate commerce at the time plaintiff received his injuries, and hence, when he filed his amended petition alleging that he and the defendant were at the time engaged in interstate commerce, he pleaded a new cause of action which was barred by the two-year statute prior to the filing of his amendment; (4) that the railway company was not doing business in the state of Missouri when plaintiff commenced his action under the Federal Employers' Liability Act, and the court had no jurisdiction of it, and hence its plea to the jurisdiction should have been sustained; (5) that the court should have directed a verdict for defendant because plaintiff failed to prove that at the time of receiving his injuries he was engaged in interstate commerce, or in work so closely related thereto as to be a part of it; (6) that the court erred in charging the jury that plaintiff and defendant were engaged in interstate transportation at the time plaintiff received his injuries. Other alleged errors are not, we think, of sufficient substance to warrant consideration.

The original petition contained no specific allegation that at the time plaintiff received his injuries he and the company were engaged in interstate commerce. It did not allege diversity of citizenship, but it alleged that the injury occurred by reason of the violation of federal statutes by the company. Did the court have jurisdiction over the defendant in the original action?

It appears from the undisputed evidence that at the time of the institution of plaintiff's action, and at the time he filed his amended petition, defendant was a corporation organized under the laws of Indiana, but that it was licensed to do business in the state of Missouri, and owned railway property therein. The pluries summons was served on the president of the defendant company in the city of St. Louis, where it maintained offices and where the president resided. The original petition disclosed that the action was based upon an alleged violation of the laws of the United States, and it appeared that the amount in controversy exceeded $3,000, so that the District Court had general jurisdiction of the cause of action regardless of the...