Wells v. Russellville Anthracite Coal Mining Co.

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Citation: 206 F. 528
• Parties: WELLS v. RUSSELLVILLE ANTHRACITE COAL MINING CO. et al.
• Decision Date: 07 July 1913

206 F. 528

WELLS
v.
RUSSELLVILLE ANTHRACITE COAL MINING CO. et al.

United States District Court, E.D. Arkansas, Western Division.

July 7, 1913

This action was originally instituted on December 12, 1912, in the circuit court of Pope county, state of Arkansas, to recover damages in the sum of $2,999.99, alleged to have been sustained by the plaintiff as administratrix of the estate of W. J. Wells, deceased, who, it is alleged, was, while an employe of the defendants, by reason of their negligence, injured on March 9, 1911, from the effects of which he died within a few days of the accident. The complaint alleged that the defendant the Russellville Anthracite Coal Mining Company (hereinafter called the Russellville Company) is a corporation created by and existing under the laws of Michigan, and that the other defendant (hereinafter referred to as the Fidelity Company) is a corporation organized and existing under and by virtue of the laws of the state of . . ., not mentioning the state of its creation. In due time the defendants filed a petition and bond for removal to this court, which was granted by the state court. The petition alleges that the defendant the Russellville Company is a citizen of the state of Michigan, and the defendant the Fidelity Company a citizen of the state of Kansas, and were so at the time of the filing of the complaint and petition, but fails to allege under the laws of which states they exist.

The plaintiff has filed a motion to remand, setting up some general grounds that the court has no jurisdiction, and that the cause is not removable, and also the following specific grounds: (1) That the requisite diversity of citizenship required as a condition precedent to the jurisdiction of this court in a controversy of the character presented in this record does not exist. (2) That it is apparent upon the face of the record presented that the amount in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000. [206 F. 529]

R. C. Bullock and M. L. Davis, both of Dardanelle, Ark., and Mehaffy, Reid & Mehaffy, of Little Rock, Ark., for plaintiff.

J. B. Ward, of Russellville, Ark., and W. R. Thurmond, of Kansas City, Mo., for defendants.

TRIEBER, District Judge (after stating the facts as above).

The petition for removal alleges that the defendants, both of whom are corporations, are citizens and residents of the states of Michigan and Kansas, respectively, but fails to state what states created either of them. The diversity of citizenship to authorize a removal need not be alleged in the petition for removal, when it appears from the complaint or any part of the record when the petition for removal was filed. Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 24 L.Ed. [206 F. 530]

656; Bondurant v. Watson, 103 U.S. 285, 26 L.Ed. 447; Denny v. Pironi, 141 U.S. 121, 124, 11 Sup.Ct. 966, 35 L.Ed. 657; Shattuck v. North British & Merc. Ins. Co., 58 F. 609, 7 C. C. A. 386. By reference to the complaint we find that it is alleged that the Russellville Company was created and exists under the laws of the state of Michigan; but it fails to allege under the laws of which state the Fidelity Company was created, leaving the name of the state blank.

As the jurisdictional facts must clearly appear from the record to give a court of the United States jurisdiction, and there is nothing to show either in the petition or the complaint that the Fidelity Company was created and exists under the laws of a state other than that of Arkansas, of which state the plaintiff is a citizen and resident, the petition is clearly defective, unless the allegation in the petition that these corporations are citizens and residents of the states named is sufficient. That a corporation, as an entity, is not a citizen of any state is now settled by an unbroken line of decisions. Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357; Norfolk & Western R.R. Co. v. Pennsylvania, 136 U.S. 114, 10 Sup.Ct. 958, 34 L.Ed. 394; Orient Insurance Co. v. Daggs, 172 U.S. 557, 19 Sup.Ct. 281, 43 L.Ed. 552; Waters-Pierce Oil Co. v. Texas, 177 U.S. 28, 20 Sup.Ct. 58, 44 L.Ed. 657; Great Southern Fireproof Hotel Co. v. Jones, 177 U.S. 454, 20 Sup.Ct. 690, 44 L.Ed. 842; Rife v. Lumber Underwriters (C.C.A.) 204 F. 33.

When the question of jurisdiction of the national courts in actions by or against corporations first came before the Supreme Court, it was held that the jurisdiction depended upon the citizenship of all the stockholders, as in a partnership, and if any one of the stockholders of the corporation was a citizen of the same state as any one of the parties on the other side to the action, there was no such diversity as will justify the assumption of jurisdiction by a national court. Hope Insurance Co. v. Boardman, 5 Cranch, 57, 3 L.Ed. 36; Bank of United States v. Deveaux, 5 Cranch, 61, 3 L.Ed. 38. This construction was adhered to and followed by that court for 50 years; the last case in which this rule was recognized being Irvine v. Lowry, 14 Pet. 293, 10 L.Ed. 462. But in 1844 in Louisville, etc., R.R. Co. v. Letson, 2 How. 497, 11 L.Ed. 353, this rule was changed, and it was there held:

'A corporation created by and transacting business in a state is to be deemed an inhabitant of the state and capable of being treated as a citizen for all purposes of suing and being sued, and an averment of the facts of its creation and place of transacting business is sufficient to give the Circuit Court of the United States jurisdiction.'

In that case it will be noticed it was not yet determined that this was a conclusive presumption; but in Marshall v. B. & O. Ry. Co., 16 How. 314, 14 L.Ed. 953, it was finally determined that, the presumption arising from the habitat of a corporation in the place of its creation being conclusive as to the residence or citizenship of...