218 F. 320 | 6th Cir. | 1914
The sole basis of the question so argued is that the jurisdiction of the court depended upon diversity of citizenship; but this is a mistake. True, it is alleged in the petition that plaintiff is “an alien and a subject of Austro-Hungary,” though the proof offered to support the allegation is meager and unsatisfactory. Plowever, the petition further alleges that the defendant Cobb “is and at the times hereinafter complained of was the receiver of the Columbian Hardware Company, a corporation, organized and existing under and by virtue of the laws of the state of Ohio; that he was appointed such receiver” by the court below on a date named, and at the times complained of “was engaged in operating a factorv for the manufacture of various products of iron” in Cleveland, Ohio; and that on a specified date plaintiff was seriously injured while in the employ and through the negligence of defendant. The -answer admits that the defendant, Cobb, is the receiver of this corporation, that the corporation “was engaged in operating a factory for the manufacture of various products of iron in the city of Cleveland,” and that on the date stated in the petition plaintiff “met with an accident which caused him some injury; but the defendant, not being fully advised as to the nature and extent of the same, denies the allegations of the petition pertaining thereto.” And defendant “denies each and every allegation therein contained not herein specifically admitted to be true.” Defendant further answered, alleging:
“That, such injuries as the plaintiff received were either directly caused or contributed to by the negligence or carelessness of the plaintiff himself.”
“Tlie allegations of a pleading shall be liberally construed, with a view to substantial justice- between the parties.”’ Section 11345, 5 Page & Adams Ohio Gen. Code, p. 833.
We also recognize the rule that it is the duty of the federal courts to decline to take cognizance of a cause that does not fall reasonably within their jurisdiction; but in a case like this we are disposed to approve of the course taken in William H. Perry Co. v. Klosters Aktie Bolag, 152 Fed. 967, 969, 82 C. C. A. 321 (C. C. A. 1st Cir.), where it was said:
“Still, while the parties cannot confer jurisdiction by consent, where the jurisdictional facts are properly alleged, and thus properly appear upon the record, and the parties upon pleadings which go to the merits, proceed to trial, and particularly where the jurisdictional facts are not subsequently put in issue by the defendant or seriously denied, the case ordinarily will not be dismissed for want of jurisdiction, and this is especially so where tile proofs do not create a legal certainty that the controversy involved is not within the jurisdiction.”
The judgment below is affirmed, with costs.