Baltimore & O. R. v. McLaughlin, 73 F. 519

Baltimore & O. R. v. McLaughlin

73 F. 519 | 6th Cir. | 1896

TAFT, Circuit Judge

(after stating the facts as above). The first objection made by the plaintiff in error is that the averments of jurisdiction in the amended petition are not sufficient to show that the plaintiff was a citizen of Ohio at the time of the filing of the petition. The amended petition in this case was merely the addition to the original petition of the averment with reference to the citizenship. It was an amendment to the original petition, and the new averment contained in the amendment had relation, in point of time, to the filing of the original petition. A case presenting a eloselyanalogous question has recently been decided by the court of appeals of the Eighth circuit. Carnegie, Phipps & Co. v. Hulbert, 16 C. C. A. 498, 70 Fed. 209-218. There the question was whether a statute of limitations constituted a good defense to the action. Suit had been brought within the statutory period, but the petition with which the suit was begun did not contain the requisite averment as to the diverse citizenship of the parties essential to give the circuit court jurisdiction. After judgment the case was reversed for want of jurisdiction, with leave to the parties to amend to make the proper averment. An amendment was made. By the time the amendment was made, the time of the statutory limitation had expired, and the contention was that the suit must be regarded as having been commenced from the time the proper jurisdictional averment was made. This contention was defeated on the ground that the amendment related back to the time when the original petition ivas filed. A similar question had been passed upon in the case of Bow-*522den v. Burnham, 8 C. C. A. 248, 59 Fed. 752. There the question was whether an attachment sued out on a petition which did not make the proper jurisdictional averments would relate back to the time of filing the original petition, after an amendment had been made to the petition supplying the defect. In that case the court said, speaking by Judge Caldwell:

“But the court very properly granted the plaintiffs leave to amend their complaint, and it was amended. Nevertheless, the plaintiff in error asserts that as the complaint, at the time the attachment was issued, did not contain the necessary jurisdictional averments, every step taken in the cause prior to the amendment was void, and that the amendment of the complaint could not impart vitality or validity to anything done before the amendment was made. This contention is wholly untenable. It is everyday practice to allow amendments of the character of those made in this case, and, wheh they are made, they have relation to the date of the filing of the complaint, or the issuing of the writ or process amended. When a complaint is amended, it stands as though it had originally read as amended. The court in fact had jurisdiction of the cause from the beginning, but the complaint did not contain the requisite averments to show it. In other words, the amendment did not create or confer the jurisdiction; it only brought on the record a proper averment of a fact showing its existence from the commencement of the suit.”

So, here, we think the averment by way of amendment to the original petitipn must be construed as of the date of the original petition, and be given effect as if the averment had been made a part of the original petition. It would be improper, in an amendment to a petition, for the plaintiff to aver a fact which happened subsequent to the filing of the original petition. A pleading averring such a fact would be a supplementary petition, and not an amendment to the original petition. An amendment to a petition is not to be construed in the same way, in this regard, as the petition for removal. A petition for removal is .necessarily filed some time after the pleading which begins the cause, and the petition for removal is not in proper form unless it expressly avers the citizenship as of the time of the beginning of the suit. Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. 518; Kellam v. Keith, 144 U. S. 568, 12 Sup. Ct. 922. An averment in the present tense in a petition for removal is an averment as of the time of the filing of that petition, and not as of the time of filing the original pleading in the cause. Nor is there any defect in the averment that the defendant company was an association of persons duly incorporated under the laws of Maryland. The due incorporation under the laws of Maryland raises the conclusive presumption, in accordance with the decisions of the supreme court, that all the members of the association thus incorporated are and were citizens of Maryland. Muller v. Dows, 94 U. S. 444; Frisbie v. Railway Co., 57 Fed. 1-3.

We find no error in the record. There was ample evidence to sustain the finding of the jury that the accident occurred by reason of the defective character of the bridge, and the failure of the company to maintain it in a safe condition.

There was no doubt of the authority of the agent to allow McLaughlin to ride with the stock which he had shipped, and to take charge of it on the trip. The only limitation of authority claimed was that the contract of shipment should have contained certain re*523strictions. One was that the company should be held harmless from any injury occurring to the owner or agent in charge of the stock on the (rip. This, of course, under the principles announced by the supreme court of the United States in Railroad Co. v. Lockwood, 17 Wall. 357, could not exempt the company from liability for an injury occurring through the negligence of its agents. That was the case of a drover traveling in charge of cattle on a train, who had been required to sign an agreement to at tend to the loading, transporting, and unloading of them, and to take the risk of injury to them, and personal injury to himself. He traveled on what was called a “drover’s pass,” declaring on its face that its acceptance was to be considered as a release of the company from all liability for damages and injuries received on the train. The limitation of liability was held void, in tin case at bar the same limitation is relied upon by the company. It is void. An attempt to limit the authority of an agent by requiring that he shall impost! such a limitation in every contract of shipment must be equally nugatory. Moreover, even if a case were made showing that the agent, had such a limited authority, it would nor affect a person dealing with him as a representative of the company; without: notice of such a limitation. It is part of the duty of the railroad company, as a common carrier, to ship stock. North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727-734, 8 Sup. Ct. 266; Stock-Yards Co. v. Keith, 139 U. S. 128-133, 11 Sup. Ct. 461. And a station or freight agent in charge of a station and freight depot at any place where stock is likely to be shipped may be presumed to have authority necessary for the purpOirf(\

Finally, reliance is had upon a receipt of McLaughlin Bros, as a settlement with the plaintiff for his personal injury. We regard this defense as frivolous. The receipt, on its face, expressly states that it is for two horses, and makes no reference whatever to the personal injury of McLaughlin. The firm asserted no right to recover for these personal injuries. Such right: was in McLaughlin himself, as an individual; and the release of the firm claim could not, by any possibility, include a claim by one member of the firm for such a tort. The judgment of the court below is affirmed, with costs.