Webb v. Southern Ry. Co.

• Decision Date: 17 August 1916
• Docket Number: 536.
• Citation: 235 F. 578
• Parties: WEBB et al. v. SOUTHERN RY. CO.
• Court: U.S. District Court — Southern District of Alabama

235 F. 578

WEBB et al. v. SOUTHERN RY. CO.

No. 536.

United States District Court, S.D. Alabama, Northern Division.

August 17, 1916

Garber & Garber, of Birmingham, Ala., and King & Spalding, of Atlanta, Ga., for plaintiffs.

Pettus Fuller & Lapsley, of Selma, Ala., for defendant.

HENRY D. CLAYTON, District Judge.

This cause is submitted upon the plaintiffs' motion, which is in the nature of a motion to remand to the state court. The action in this case was instituted on August 10, 1915, in the law and equity court of Marengo county Ala. There are four counts in the complaint, varying from each other in minor respects. For present purposes it is not necessary to consider more than one of them, the first, which with the above caption is in the following language:

'First Count. The plaintiffs, John C. Webb, for the use of himself and the Queen Insurance Company of America, a corporation and the London & Lancashire Fire Insurance Company, a corporation, and the Queen Insurance Company of America, a corporation chartered and existing under the laws of the state of New York, and the London & Lancashire Fire Insurance Company, a corporation chartered and existing under the laws of the United Kingdom of Great Britian and Ireland, claim of defendant, Southern Railway Company, a body corporate, the sum of $50,000 as damages due by reason of the wrongful act and negligence of the said defendant in this: For that heretofore on, to wit, the 26th day of January, 1915, the said defendant was running and operating a steam railway through Demopolis, Ala., in the said county of Marengo, and was running and operating thereon a steam locomotive; that the plaintiff John C. Webb, on the said date, to wit, the 26th day of January, 1915, was the owner of a certain compress building, including platforms, sheds brick boiler house, together with the equipment of compress machinery therein contained, and a certain ice house storage building, located on the north side of the railroad track, or tracks, of the said Southern Railway in Demopolis, Ala., and near the said railroad tracks, and plaintiffs aver that said property, to wit, said buildings, machinery, and other property, so destroyed was of the value of $50,000, and that said buildings, machinery, and other property, including said ice house storage building, were, on, to wit, the 26th day of January, 1915, destroyed by fire, which fire was occasioned by the negligence of said defendant, Southern Railway Company, as follows: Said fire was caused by sparks emitted from an engine being operated on said track or tracks of said Southern Railway Company adjoining the premises upon which said property above described was situated, said engine being operated by said Southern Railway Company. Plaintiffs aver that said Southern Railway Company's said engine was not equipped with proper spark arresters, and that the same was so imperfect that, instead of arresting the sparks therefrom, it emitted large quantities of sparks into the air, endangering said property adjacent to its tracks, and that said condition of said engine was negligence; that the failure to have spark arresters on said engine which would prevent said quantity of sparks from escaping was negligence, and that by reason of such negligence large quantities of sparks were emitted, from and by which the said compress building was ignited and it and the other said property was destroyed by fire.

'Plaintiff further avers that as a consequence of said negligence of the said defendant, its agents, servants, or employes, the said property of the value aforesaid was set on fire and destroyed by sparks from a locomotive operated by the defendant on its said track, or tracks.

'The plaintiffs aver that the said property, except the said ice house storage building, had been before, and was on the 26th day of January, 1915, insured against loss by fire by the said London & Lancashire Fire Insurance Company in the sum of $14,500, of which amount $689 was insurance upon the said compress building, and the sum of $13,811 was insurance upon machinery and personal property contained on the premises aforesaid, and that said property was insured against loss by fire by the Queen Insurance Company of America, in the sum of $21,000, of which $14,405.50 was insurance upon said compress building, and $6,595.50 was insurance upon said machinery and property above mentioned. Said policies were written in the name of John C. Webb & Sons, but plaintiff John C. Webb was the owner of all of said property and was insured by said policies, and the sums hereinafter stated were paid by said insurance companies to him.

'Plaintiffs further aver that because of the issuance of the policies of insurance upon said property and of the loss by fire, the said London & Lancashire Fire Insurance Company paid to the owner thereof, to wit, the plaintiff, John C. Webb, the sum of $12,262.66, and the said Queen Insurance Company did pay to the said owner the sum of $19,931.84. By reason of the said payments the said insurance companies so paying the same became and were subrogated to the claim of the said John C. Webb, plaintiff, against the said Southern Railway Company as a wrongdoer for the destruction of said building to an amount equal to the payments so made by them, and, furthermore, upon the said several payments and in consideration thereof, the said John C. Webb, the plaintiff, did assign, set over, and transfer in writing to the said London & Lancashire Fire Insurance Company all rights, claims, interests and choses in action, which he had against said Southern Railway Company, for its liability for the burning or destruction of said property to the extent of said payments above mentioned so made to him by said London & Lancashire Fire Insurance Company, and did assign and transfer in writing to said Queen Insurance Company of America all claims and demands which he had against said Southern Railway Company arising from or connected with said loss or damage to the extent of an amount equal to the above-stated sum so paid by said Queen Insurance Company of America to said John C. Webb. By reason of which said several assignments, the said plaintiffs London & Lancashire Fire Insurance Company and the Queen Insurance Company of America became and are joint owners with the said plaintiff John C. Webb in and of the right of recovery for the damage of property aforesaid against the said Southern Railway Company.

'Plaintiffs further aver that the said John C. Webb was, as was well known to the said Southern Railway Company, engaged in the business of compressing cotton at said compress, and that the destruction of said compress occurred during the season for the compressing of cotton; that by reason of the destruction of said property the said plaintiff John C. Webb was prevented from compressing 7,500 bales of cotton, which were offered to said Webb for compression at said compress after the happening of the said fire and while he was proceeding with the utmost diligence to restore said compress, and before the same could be restored; the price for compressing cotton which plaintiff Webb would have received for compressing said 7,500 bales of cotton was 8 1/2 cents per hundred pounds, and the profits thereof were 30 cents per bale above the cost of compression; that said cotton was shipped without being compressed because of the destruction of said compress plant and the deprivation of its said use, whereby said plaintiff John C. Webb was damaged in the sum of $2,250, which sum he is entitled to recover as a part of the damages inflicted by said Southern Railway Company by reason of the destruction of said property and as arising out of said loss by fire, which was occasioned by the negligence of the defendant aforesaid.

'All of which has been to the damage of the said plaintiffs in the sum first above stated.'

Within the time allowed for pleading in the state court, the defendant presented its written application in proper form and substance for the removal of the cause. This application was accompanied by a bond, conditioned as required by law, which was approved by the judge of the state court. Upon the hearing that court refused to make the order of removal. Thereupon, and in due time, the defendant filed in this court a transcript of the proceedings in the state court, with a petition asking Judge Harry T. Toulmin, United States District Judge for the Southern District of Alabama, to restrain plaintiffs from the prosecution of their suit in the state court, alleging, in effect, that as a matter of law this court has jurisdiction of the controversy, and that this court should hear and determine same. Judge Toulmin issued the order, upon bond being given by the defendant, restraining the plaintiffs from the prosecution of their suit in the state court until the question of the removability of the cause to this court should be settled.

1. The defendant complied with every requirement of law governing the removal of causes from a state court to a federal court. This, in and of itself, operated as a removal, provided the cause was removable. In other words, under the circumstances shown, if the cause be removable to the federal court, this court will treat it as having been removed, although the judge of the state court declined to make the proper order. Crehore v. Ohio & M. Ry. Co., 131 U.S. 240, 9 Sup.Ct. 692, 33 L.Ed. 144; Railroad Co. v. Koontz, 104 U.S. 5, 15, 26 L.Ed. 643; City of Montgomery v. Postal, etc., Cable Co. (D.C.) 218 F. 471. See, also, Boatmen's Bank v. Fritzlen, 135 F. 650, loc. cit. 653, 68 C.C.A. 288, 291, where Sanborn, Circuit Judge, for the court said:

'When a petition for removal and the bond required by the act of Congress are filed, and

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