Winsor v. United Air Lines

• Decision Date: 30 January 1958
• Docket Number: Civ. A. No. 1926.
• Citation: 159 F. Supp. 856
• Parties: Charles H. WINSOR, individually and as Administrator of the Estate of Alma L. Winsor, Deceased, Plaintiff, v. UNITED AIR LINES, Inc., Defendant.
• Court: U.S. District Court — District of Delaware

159 F. Supp. 856

Charles H. WINSOR, individually and as Administrator of the Estate of Alma L. Winsor, Deceased, Plaintiff, v. UNITED AIR LINES, Inc., Defendant.

Civ. A. No. 1926.

United States District Court D. Delaware.

January 30, 1958.

Stewart Lynch (of Hastings, Lynch & Taylor), Wilmington, Del., for plaintiff. Theodore E. Wolcott, New York City, of counsel.

Edwin D. Steel, Jr., and Harvey S. Kronfeld (of Morris, Steel, Nichols & Arsht), Wilmington, Del., for defendant. Haight, Gardner, Poor & Havens, New York City, of counsel.

LAYTON, District Judge.

In recognition of what appear to be the better-reasoned authorities, defendant concedes for the purposes of this suit that the Warsaw Convention, 49 Stat. 3000, of itself does not create a cause of action.² Noel v. Linea Aeropostal Venezolana, 2 Cir., 247 F.2d 677.

However, defendant contends that it is not essential for the purposes of invoking § 1441(b) that the Treaty created the cause of action providing a construction of the Treaty is necessary. I am inclined to agree with defendant that it will be necessary during the course of the trial to construe the Treaty but differ with its argument that the necessity for construction brings this matter within the purview of § 1441(b).

Because of defendant's concession, we assume for the purposes of this suit that both counts are based upon the Colorado Death Act. In fact, both counts plead the Act³ and while the first count recites paragraphs 17 and 20 of the Warsaw Convention and seeks recovery in the maximum amount specified by that Treaty, nevertheless, it is apparent not only from the Complaint but from plaintiff's brief that he looks to the State Act, not the Treaty, as the source of the right to sue.⁴

Preliminarily, it might be argued with some persuasiveness that the combination of defendant's concession, the deliberate pleading of the Colorado Death Act in both counts of the Complaint and plaintiff's disclaimer of any intention to rely on the Treaty as the basis for his claim are, in themselves, sufficient to deny jurisdiction. Clearly, plaintiff did not have to plead paragraphs 17 and 20 of the Treaty in order to state a good cause of action and, particularly, paragraph 20 would seem to represent a matter of defense only. Under the circumstances, the following quotation from Gully v. First Nat. Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70, is in point:

"Indeed, the compaint itself will not avail as a basis of jurisdiction insofar as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense."

But other, and more substantial reasons support the motion to remand. The leading case on the question of the right of removal under § 1441(b) is Gully v. First Nat. Bank, above cited. There, Justice Cardozo said in part:

"How and when a case arises `under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * * A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * *, and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. * * * Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense."

And Judge Goodrich used this pertinent language in Downing v. Howard, 3 Cir., 162 F.2d 654, 655:

"It is apparent that the question which we have to settle is whether the plaintiff has stated a basis for recovery under the federal statute just mentioned. If he has, the fact that he also asserts a non-federal ground does not lose him his privilege of suing in the federal court. On the other hand, if the substance of his claim is one based on state law, the reference to the federal statute is not enough to bring him into federal court, unless he has independent grounds for coming there. * * *"

Certainly, in this case the "* * * substance of his claim is one based on state law."

Nor, despite some statements to the contrary, is the fact that a federal law may or will be drawn into construction during the course of the litigation sufficient to support jurisdiction in a federal court. Illustrative of this proposition is Andersen v. Bingham & G. Ry. Co., 10 Cir., 169 F.2d 328, 329, 14 A. L.R.2d 987,⁵ where it was said:

"Section 28 of the Judicial Code, 28 U.S.C.A. § 71, authorizes the removal to the United States Court for the proper district any suit of a civil nature at law or in equity arising under the Constitution or laws of the United States and having in controversy more than three thousand dollars, exclusive of interest and costs. But not every question of federal law lurking in the background or emerging necessarily places the suit in the class of one arising under the laws of the United States, within the meaning of the statute. A suit having for its purpose the enforcement of a right which finds its origin in the laws of the United States is not necessarily and for that reason alone one arising under such laws. In order for a suit to be one

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