This is the second appeal in this case. The opinion on 'the former appeal is reported in
A recovery of damages was had upon the theory that the express company, by which Davis, the deceased, was employed, had placed a dangerous instrument, to-wit, a pistol in the hands of Garrison, another employee, of immature judgment, and that, at a time when Garrison was not required by his duties to use or handle the pistol, he had done so wrongfully and negligently, thereby causing its discharge and killing Davis. We held on the former appeal that no case was made on tiie grounds alleged, and reversed the judgment of the court awarding damages, but did not dismiss the case because, in the opinion of the majority, there was a question in the case whether Garrison had used the pistol in the discharge of his duties as Davis’ superior for the purpose of compelling compliance with the directions to Davis to return to work, and had used excessive force in doing so.
Upon the remand of the cause the pleadings were amended to conform to this suggestion, and the cause was tried on that theory, and a verdict was again returned in favor of the plaintiff, from which is this appeal.
The defendant, in apt time, as appears from the former opinion, presented its bond and petition for removal to the Federal court on account of diversity of citizenship. The court overruled that petition, and this action was assigned as error. We disposed of the assignment of error by saying: ‘ ‘ The case in that respect falls within the decision of the Supreme Court of the United States in Ex parte Wisner,
This assignment of error is now renewed, but appellee insists that no relief should be granted on that account for the following reasons: (1) That, upon the remand of the cause, a new petition and bond should have been filed when the complaint was amended; (2) That the former opinion is the law of the case.
There was nothing in the amendment to the complaint affecting the right of removal. If that right existed at all, it existed both before and after the filing of the amended complaint. The cause of action sued on was the alleged wrongful death of Davis, and the ground of removal was that of diversity of citizenship.
In the case of Texarkana Telephone Co. v. Bridges,
The amendment to the complaint gave no right of removal which did not exist when the petition and bond therefor were filed, and the right to remove must therefore be determined as of the time when the petition and bond were filed (they have been filed in apt time), as u is well settled that the right to insist upon a removal of the cause is not waived by filing answer and contesting the suit upon its merits. Texarkana Telephone Co. v. Bridges, supra, and cases there cited on this proposition.
As appears from our former opinion, we upheld the action of the trial court in denying the prayer to remove upon the authority of the case of Ex parte Wisner,
It was by the same learned justice there also said: “In this connection it should be observed that the opinion In re Moore is open to the criticism that it seemingly assumes that, where neither party is a resident of the district, the removal, to be effective, needs the plaintiff’s assent. We find no support for such an assumption in the provisions we are considering. Under them, as before indicated, the exercise of the right of removal rests entirely with tlie defendant, and is in no sense dependent >on the will or acquiescence of the plaintiff. The opinion In re Moore is qualified accordingly.”
The case of General Investment Co. v. Lake Shore & M. S. R. Co., 258 U. S. —, 43 S. C. Rep. 106, was decided November 27, 1922, that decision also being subsequent to our own opinion on the former appeal in this case, which was delivered February 27, 1922.
Our former opinion cannot, therefore, be the law of the case, for the reason that the case which we'followed in declaring the law has been expressly overruled; and, as this is a Federal question, it is our duty to follow the decisions of the Supreme Court of the United States, and in so doing we must now hold that the case is removable, notwithstanding our former decision that it was not removable.
In the syllabus to the case of Danaher v. Southwestern Telegraph & Telephone Co., 137. Ark. 324, it is said: “Where the issues and facts on a third appeal were the same as they were on the last of the former appeals, the decision of the Supreme Court of the United States reversing the decision of the Supreme Court of Arkansas on such second appeal would be the law of the case.”
The principle controlling here was announced by Sanborn, Circuit Judge, in the case of St. L. & S. F. R. Co. v. Quinette,
That case turned upon the construction of a statute of limitations as construed by the Supreme Court of Oklahoma. It was there said: ‘ ‘ The court below first held that the action against the railroad company was barred by subdivision 3, section 5550, and section 5553 of the Compiled Laws of Oklahoma of 1909, which are now subdivision 3, section 4657, and section 4660 of the Revised Laws of Oklahoma of 1910; but in Hale v. St. L. & S. F. R. Co.,
For the reversal of the judgment in that case the appellant railroad company insisted that, according to the latest and true interpretation of the statute,. the cause of action was barred before it was commenced. Counsel for the plaintiff objected to the reversal of the cause because: "(1) The ruling of the court below on the plaintiff’s demurrer to the answer of the defendant pleading the statute of*limitations as a defense has not been assigned as error; (2) the question was not raised on the motion for a new trial; (3) rule 11 of this court provides that 'errors not assigned according to this rule will be-disregarded’; (4)'the decision of this court upon the plea of the statute of limitations in
The court held against the plaintiff on all these contentions, and it was there said: "But the true construction of the sections stated, which have been the subjects of debate and interpretation, has been the same all the time, and from a time prior to the commencement of this action they have barred it. The error has not been in the statutes, but in the first decision of the Supreme Court of Oklahoma interpreting them, an error which, under the rule that the Federal courts follow the interpretation of the statutes of a State which the highest judicial tribunal of that State has adopted, where no question of general or commercial law, or of violation of the Constitution or laws of the United States, is involved, this court followed, as in duty bound; and, while the general rule is that the decision of a legal question by a Federal court, on a review of a trial of a cause, becomes the law of that case in a subsequent trial, and in a subsequent review of that trial by this court, there is a just and salutary exception to that rule, under which this case falls. It is that where, between the time of the decision of a Federal court of a legal question, like the construction of a State statute which is controlled by the decision of the Supreme Court of the State, and the time when the Federal court is called upon again to decide that question, or to enforce its decision in the same case, the Supreme Court of the State has either reversed or changed its former ruling, or made a decision at variance with that of the Federal court, it is the duty of the latter court, that still has jurisdiction of the case, to conform its decision and judgment to the latest decision of the Supreme Court of the State. Messenger v. Anderson,
This reasoning is so appropriate and conclusive of the question at issue that we have quoted at length.
It is true that there a Federal court was follow ing the State court in the construction of a State statute; while here we are following the construction of a Federal statute by the Supreme Court of the United State; but the point is that neither the Federal nor the State law can be changed by following an erroneous decision which has been overruled before the courts are called upon to make a final application of the overruled case. See also Louisville & N. R. Co. v. State,
It is suggested that appellant should have appealed from our former decision holding that it had no light to remove. But the sufficient answer to that argument is that it had no occasion to appeal, as we had reversed the judgment against it on another ground, leaving no judgment in force against it.
It follows therefore that the right to remove existed, and should originally have been granted; and for this error the judgment of the court below will be reversed, and the cause remanded, with directions to transfer the cause as prayed.