Clark v. Southern Pac. Co.

175 F. 122, 1909 U.S. App. LEXIS 4934

Opinion

MAXEY, District Judge

(after stating the facts as above). As the plaintiff is a citizen of the territory of Arizona, it is evident that the suit cannot be removed on the ground of diverse citizenship. A citizen of a territory is not a citizen oí a state, and to confer jurisdiction upon the courts of the United States, the diversity of citizenship must exist between citizens of different states. Cameron v. Hodges, 127 U. S. 325, 8 Sup. Ct. 1154, 32 L. Ed. 132; Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825; Hepburn v. Ellzey, 2 Cranch, 445, 2 L. Ed. 332; New Orleans v. Winter, 1 Wheat. 91, 4 L. Ed. 44. The removability of the suit will therefore depend upon the second ground relied on by the defendant, in its petition for removal, to wit, that the plaintiff’s cause of action arises under the provisions of the act of Congress known as the employer’s liability act. Neither a constitutional question nor one requiring the interpretation of treaty provisions is here involved, and removal is sought on the ground that the suit arises under a law of the United States. To authorize removal in such a case, it must appear (1) that the suit actually arises under a federal statute, (2) that the plaintiff’s statement of his own claim discloses that it is one so arising, and (3) that the suit is one of which the Circuit Court has original jurisdiction. See, generally, Tennessee v. Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511; Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34, 39 L. Ed. 85; Minnesota v. Northern Securities Company, 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870; Railroad Company v. Davidson, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672; Railway v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869, 40 L. Ed. 1048; Railroad Company v. Mottley, 211 U. S. 149, 29 Sup. Ct. 42, 53 L. Ed. 126; In re Winn, 213 U. S. 458, 29 Sup. Ct. 515, 53 L. Ed. 873; In re Dunn, 212 U. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558.

1. Does the suit arise under a law of the United States ? The cause of action is based upon the second section of the act of Congress entitled, “An act relating to the liability of common carriers by railroad to their employees in certain cases,” approved April 22, 1908, c. 149, 35 Stat. 65, 66 (U. S. Comp. St. Supp. 1909, p. 1171). The section reads as follows:

“That every common carrier by railroad in the territories, the District, of Columbia, the Panama Canal Zone, or other possessions of the United ¡átales shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of swell employee's parents; and, if none, then of the next, of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such car rier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”

That the suit directly arises under the act of Congress was ruled by this court in the recent case of Cound v. Railway Company, 173 Fed. 527; and it is deemed unnecessary to pursue the argument further except to say, in the language of Mr. Justice Bradley, referring to causes by or against federal corporations, that the suit “is pervaded from its origin to its close by United States law and United States authority.” Provident Savings Society v. Ford, 114 U. S. 642, 5 Sup. Ct. 1108, 29 L. Ed. 261.

2. Does the petition of the plaintiff disclose that the suit is one arising under federal law? The Cound Case responds affirmatively also to the question thus propounded. In that case the following language was employed:

“This court therefore having jurisdiction of the cause as one arising under a law of the United States, it is quite immaterial whether the plaintiff declare in his petition expressly upon the act, as in the present case he did in his original petition, or whether the pleadings be silent touching jurisdictional averments. If the case arise, as did the case before the court, under the second section of the employer’s liability act—that is, if an employe of a carrier by railroad suffer personal injury from the negligence of the latter while employed in the performance of his duty, and such iiljury result from an accident, occurring in the territories—appropriate allegations of such facts are alone sufficient to confer jurisdiction of the case upon a United States court, without specially pleading the act or without referring to its provisions. This result follows necessarily, since, in the case supposed, the suit is founded upon a law of the United States, which it is the duty of federal courts to take notice of and to enforce. See Yoelker v. Railway Company [C. C.] 316 Fed. 867; Thornton, Employer’s Liability and Safety Appliance Acts, §§ 104 and 107.”

See, also, Railway Company v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132. Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319; In re Dunn, supra.

3. Is the suit one of which the Circuit Court has original jurisdiction? We have seen that there is an absence of diverse state citizenship, and hence jurisdiction cannot be based upon that ground. It is, however, equally clear that the court has general original jurisdiction of the cause on the ground that it arises under a law of the United States, since in such cases jurisdiction attaches without reference to the citizenship of the parties. Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228, 31 L. Ed. 844; Bachrack v. Norton, 132 U. S. 337, 10 Sup. Ct. 106, 33 L. Ed. 377; Simkins, Suit in Equity, p. 103; 2 Bates, Fed. Proc. at Law, § 668, citing numerous authorities. But, conceding the correctness of the principle, the plaintiff insists that, as neither he nor the defendant is a citizen of Texas nor a resident of this judicial district, suit could not be brought in the circuit court of this district, and that, not being maintainable here originally, it cannot be removed. Generally speaking, the proposition thus announced is sound law. Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904. But it is subject to the qualification that where the parties have waived the privilege of being sued in their own district, the jurisdiction over the person attaches, and that upon the principle that where a court lias general jurisdiction of a suit it may be brought in any district by consent of the parties. In re Moore, supra; Loan Company v. Mining Company, 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101; Kreigh v. Westinghouse, 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984; Railway Company v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; Construction Company v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401. And it seems also to have been decided that, inasmuch as a suitor has the right to select his own forum, the consent of both parties is a prerequisite to complete jurisdiction upon the removal of such a cause. In re Moore, supra; Foulk v. Gray (C. C.) 120 Fed. 156.

The question remains, Have the parties waived the privilege to which they were entitled? That the defendant has done so, by filing its petition for removal, cannot be doubted. It was said by Mr. Justice Brewer, in the case of In re Moore, 209 U. S., at page 496, 28 Sup. Ct., at page 587 (52 L. Ed. 904):

‘•That the defendant consented to aecei>t the jurisdiction of the United States court is obvious. It filed a petition for removal from the state to ihe United ¡States court. No clearer expression of its acceptance of the jurisdiction of the hitter could be liad.”

What is the attitude of the plaintiff? After a copy of the record was filed in this court he propounded interrogatories to witnesses, obtained a commission to take their testimony, and served! a written notice upon the defendant that the depositions would be used in this court upon the trial of the cause. It was only after he had thus availed himself of the process of the court and impliedly consented to its jurisdiction that a motion was filed to remand the cause to the state court. But, notwithstanding his voluntary submission to the jurisdiction of the court in the manner stated, the plaintiff contends that he did not thereby waive his plea of privilege; and in support of this contention reliance is placed upon the act of the Regislature of this state, approved April 18, 1907. Gen. Raws Tex. 1907, p. 249, c. 133. Section 1 of the act, amending the Revised Statutes of 1895 of the state by adding article 1194b, provides as follows:

“Issuing process for witnesses and taking depositions shall not constitute a waiver of such plea of privilege,, but depositions taken in such case may be read in evidence in any subsequent suit between the same parlies concerning the same subject-matter in like manner as if taken in such subsequent suit, and if such plea of privilege is sustained the cause shall not be dismissed but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein, and the cost incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff.”

While the act of the Regislature is binding on the state courts, it is without application to jurisdictional questions arising in the courts of the United States. Discussing the conformity statute, enacted by the Congress in 1872 (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), in connection with the statutes of Texas regulating the appearance of defendants in certain cases, the following language was used by Mr. Justice Gray in Southern Pacific Company v. Denton:

“Under this act, the Circuit Courts of the United States follow the practice of the courts of the state in regard to the form and order of pleading, including the manner in which objections may be taken to the jurisdiction, and the question whether objections to the jurisdiction and defences on the merits shall be pleaded successively or together. Delaware County v. Diebold, Safe Co., 133 U. S. 473, 488 [10 Sup. Ct. 399, 33 L. Ed. 674]; Roberts v. Lewis, 144 U. S. 653 [12 Sup. Ct. 781, 36 L. Ed. 579]. But the jurisdiction of the Circuit Courts of the United States has been defined and limited by the acts of Congress, and can he neither restricted nor enlarged by the statutes of a state.” 146 U. S. 209, 13 Sup. Ct. 47, 36 L. Ed. 942.

See, also, Railway Company v. Pinkney, 149 U. S. 206, 13 Sup. Ct. 859, 37 L. Ed. 699; Loan Company v. Mining Company, 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101; Marble Company v. Gibson, 213 U. S. 10, 29 Sup. Ct. 324, 53 L. Ed. 675. The contention of the plaintiff is therefore not well taken.

By consent of both parties to the record the court has acquired jurisdiction of the cause, and the motion to remand should be overruled. Ordered accordingly.

Footnotes

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For other cases see same topic & § numbek in Dec. & Am. Digs. 1997 to date, & Rep’r Indexes

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For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep‘r Indexes