Walton v. Southern Ry. Co.

• Decision Date: 30 April 1910
• Docket Number: 116.
• Parties: WALTON v. SOUTHERN RY. CO.
• Court: U.S. District Court — Northern District of Georgia

179 F. 175

WALTON v. SOUTHERN RY. CO.

No. 116.

United States Circuit Court, N.D. Georgia.

April 30, 1910

Smith Hastings & Ransom, for plaintiff.

Maddox McCamy & Shumate and McDaniel, Alston & Black, for defendant.

NEWMAN District Judge.

This case was removed from the state court, and there is a motion to remand. The suit is for damages for personal injuries alleged to have been received by Walton, an employe of the defendant, while in the discharge of his duty as conductor of one of the defendant company's trains in Calhoun county Ala.

The declaration contains four counts. The first two counts are based on the statutes of Alabama, the counts stating somewhat differently the way the accident occurred. The third and fourth counts may have been intended to bring the case within and under the employer's liability act of Congress. Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1909, p. 1171). The only thing, however, in either of the counts (and it is the same in both) is this, 'At the time of the injuries hereinafter complained of your petitioner was engaged in the transportation of interstate commerce,' which is clearly an insufficient statement to make a case under that act. It should certainly be alleged that the defendant was a common carrier engaged in interstate commerce by railroad. The only statement about the defendant company anywhere in the declaration is that it was operating trains in Calhoun county, Ala.

The rights of the defendant on this motion to remand and the question as to the jurisdiction of this court would be entirely different if the case was based on the employer's liability act, or any of the counts clearly based on that act. Certainly a case should be made coming within the terms of the act before the court could apply the same to the plaintiff's rights on this motion or to the question of jurisdiction in the Circuit Court. It is true also, as has been held here in a recent case, that, where the employer's liability act is properly invoked, it supersedes all other law as to the rights of injured persons who are employes of common carriers by railroad engaged in interstate commerce, while the person injured is engaged in such commerce. In order to hold these two counts in the declaration good counts under the employer's liability act of Congress, it would be necessary to depend upon the implication that, because the plaintiff was engaged in interstate...