3 F.2d 818 | W.D. Wash. | 1925
(after stating the facts as above). No issue is taken to the history of the engine from May 20th to December 15th. The motion to remand, in the absence of denials, is in the nature of a demurrer to the petition, and admits the truth of the allegation. Bradshaw v. Bowden (D. C.) 226 F. 323, and cases cited.
An allegation in a complaint of interstate commerce relation, not supported in fact, to defeat removal, is a fraud, and will not defeat removal. Wilson v. R. I. & S. Co., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144; Gt. Northern Ry. v. Alexander, 246 U. S. 276, 38 S. Ct. 237, 62 L. Ed. 713; Savarin v. Railway (D. C.) 292 F. 157.
Where objection to jurisdiction appears on the face of the removal papers, the point is raised by motion to remand (Chicago & N. W. Ry. v. Ohle, 117 U. S. 123, 6 S. Ct. 632, 29 L. Ed. 837; Wetmore v. Rymer, 169 U. S. 115, 18 S. Ct. 293, 42 L. Ed. 682), and the court should search the record (Carr v. Fife, 156 U. S. 494, 15 S. Ct. 427, 39 L. Ed. 508. Missouri, K. & T. Ry. Co. v. Chappell [D. C.] 206 F. 695).
The issue here, I think, is on all foicfe with Industrial Commission v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888. The engine upon which the plaintiff was employed at the time was not “engaged in interstate transportation, or any work so closely related thereto as to be practically a part of it.” Shanks v. D., L. & W. R. R., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; C., B. & Q. R. R. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; So. Pac. Co. v. Ind. Acc. Com. of Cal., 251 U. S. 259, 40 S. Ct. 130, 64 L. Ed. 258, 10 A. L. R. 1181. “It was not interrupted in an interstate haul, to be-repaired and go on.” M. & S. L. R. R. Co. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; C., K. & S. Ry. Co. v. Kindlesparker, 246 U. S. 657, 38 S. Ct. 425, 62 L. Ed. 925. In the Industrial Commission Case, supra, the court at page 184 (42 S. Ct. 490) said:
“ * * * The engine was sent from exclusive employment in interstate commerce to the repair shops. It was sent there for general overhauling December 19, 1918, and was, tp a certain extent, stripped and dismantled. It was estimated that the work upon it would be finished January 30, 1919, but it was not actually completed until February 25, 1919. The accident occurred on February 1st of that year. After the repairs were finished the engine was given a trial trip and finally put into service in interstate commerce.”
In the instant case the engine was withdrawn from service May 20, 1922, stored on the repair tracks at the shop until October loth, when it was placed in the roundhouse, and stripping and dismantling begun, and on October 27th, while engaged in stripping and dismantling, the plaintiff was injured. The repairs were completed December 15th, and thereafter, the locomotive was returned to interstate commerce. There is no escape from the conclusion in the Davis Case, supra.
The motion is denied.
