218 F. 529 | 6th Cir. | 1914
This was a suit to recover damages suffered by Stricklin while he was employed in the lumber yard of the box company, at Martin’s Ferry, Ohio. There was a long platform between the railroad track and the lumber piled in the yard. Strick-lin was pushing an empty truck along this platform and was about to meet a loaded truck drawn by a horse and driven by another em-ployé. Stricklin turned out close to the edge of the platform, next to the .railroad, and stopped. The loaded truck did not turn out far enough, the hub of its wheel struck the hub of Stricklin’s truck, and, either as the result of the blow so given or of the swing of the load of lumber as the driver pulled away, Stricklin was knocked off the platform, fell onto the railroad track, and was badly hurt by a railroad car just then approaching. He recovered a verdict of $4,750, and the company assigns error, raising a question on the pleadings and claiming that there was no evidence of negligence. Under the Ohio statute in force (the Norris Act, §§ 6242, 6245 — 1, Page & A. General Code), plaintiff’s contributory negligence would not be a bar, if it was slight as compared with defendant’s negligencé (McMyler Co. v. Mehnke [C. C. A. 6] 209 Fed. 5, 7, 126 C. C. A. 147);
In this, there was no error. Not only was the court plainly right in treating the petition as one for ordinary negligence — at least inclusively if not exclusively- — but the answer did, in substance and effect, allege contributory negligence, although it did not use those words. The charge gave defendant the benefit of that defense, all known witnesses testified fully, and there is nothing to suggest that defendant could have produced any further evidence if it had pleaded the affirmative defense of contributory negligence.
It is clear, however, that a line of Supreme Court decisions (Stevens v. Nichols, 130 U. S. 230, 9 Sup. Ct. 518, 32 L. Ed. 914; Crehore v. Railway Co., 131 U. S. 240, 243, 9 Sup. Ct. 692, 33 L. Ed. 144; Jackson v. Allen, 132 U. S. 27, 34, 10 Sup. Ct. 9, 33 L. Ed. 249; Young v. Parker, 132 U. S. 267, 271, 10 Sup. Ct. 75, 33 L. Ed. 352; Graves v. Corbin, 132 U. S. 571, 590, 10 Sup. Ct. 196, 33 L. Ed. 462; La Confiance Co. v. Hall, 137 U. S. 61, 11 Sup. Ct. 5, 34 L. Ed. 573; United States v. County Court, 144 U. S. 568, 12 Sup. Ct. 921, 36 L. Ed. 544) does compel this result, unless they have been modified by something later. The sum of these decisions, as applied to a situation of this class, certainly is that such an allegation of the citizenship of a party at the date of commencing suit in the state court as to demonstrate that he was not, at that moment, a citizen of the same state as the other party, is of the essence of jurisdiction, and, being so essential, its absence can neither be overlooked nor supplied by inference nor cured by amendment. This court has applied this principle with great strictness. Macey Co. v. Macey, 135 Fed. 725 , 729, 68 C. C. A. 363.
Kinney v. Columbia, 191 U. S. 78, 24 Sup. Ct. 30, 48 L. Ed. 103, clearly amounts to a withdrawal of the strict earlier rule. In that case there was in the removal petition no allegation as to the citizenship of the plaintiff at any time; but this point was touched only by 'the statement that the controversy “is” between citizens of different states. This allegation had been held insufficient, and it comes no nearer to saying that plaintiff was a citizen of Utah when the suit was commenced than docs the present petition to saying that Strick-lin was a citizen of Ohio when the suit was commenced. Indeed, the latter allegation is rather closer, because it positively states his citizenship at a date only a few days from the vital date. Although some special features are recited in the Kinney Case, its necessary effect is that a petition for removal which seems to intend to state good cause, but which is merely imperfect in reaching one of the necessary facts, does give jurisdiction to the federal court and does remove the case. Obviously, if the case remained in the state court, as all of the earlier
It is not without significance that the Code (section 29 [Comp. St. 1913, § 1011]) now requires notice of the removal proceedings, and we have thought this implied a right to be heard to some extent and so was vital. Butterworth v. Sessions, 205 Fed. 502, 123 C. C. A. 570; Arthur v. Maryland Co. (D. C.) 216 Fed. 386, 387. An order of a state court, after such notice and hearing, may well operate to cure an imperfect showing in a way that could not be assumed under the former practice.
Once do away with the thought that in such a case — where the removal petition was only imperfect, and where the state court had approved the transfer — the jurisdiction remains and is in the state court, and there seems no reason why it should not be viewed as liberally after judgment as is a cas.e begun in the federal court. This is especially true where, after removal, plaintiff has filed an amended but incomplete petition and issue has been again joined.
It is now well established, as to a suit commenced in a federal court, that even where the pleading allegations of diverse citizenship are incomplete, yet if no question is made on that point and its existence can fairly be presumed from the entire record which reaches an appellate court, including the proofs as well as the pleadings, the court will not reverse for that reason. Robertson v. Cease, 97 U. S. 646, 648; Sun Ass’n v. Edwards, 194 U. S. 377, 382, 24 Sup. Ct. 696, 48 L. Ed. 1027; Mahoning Co. v. O’Hara (C. C. A. 6) 196 Fed. 945, 948, 116 C. C. A. 495; R. R. v. Stephens, supra. Here we observe that the petition says plaintiff was working in Ohio at the time of the accident; that plaintiff did not move to remand, as he naturally would have done if he had not been a citizen of Ohio when the suit was commenced; that the allegation- in the removal petition of citizenship on January 19th, in connection with plaintiff’s earlier situs as working in Ohioi in October, strongly suggests his citizenship on December 20th; that, at the opening of the trial, the counsel stipulated an agreement on the subject of diverse citizenship, which clearly all counsel and the court thought showed jurisdiction; and that plaintiff testified he resided at Bridgeport, and for some time before the accident had been working in the vicinity and had been helpless at home ever since the accident, in October. In spite of all these things, it may be true that he had become a citizen of Ohio within a few days preceding January 19th; but this is not the natural presumption, it is highly improbable. We think the case is fairly within the principle of the Kinney and Sun Cases. Indeed, the fact analogy to the latter is very close as to inferring citizenship. The mere possibility that there was no jurisdiction will not justify reversal.
The judgment is affirmed, with costs.