218 F. 547 | 2d Cir. | 1914
Lead Opinion
Upon the point of jurisdiction we think the court below was right. Roberts v. Lewis, 144 U. S. 654, 12 Sup. Ct. 781, 36 L. Ed. 579, decided that a denial of the allegation of citizenship raised the question of jurisdiction over the subject-matter, and that, where the record shows no proof on the issue, the court has no power to proceed. The proof under the pleadings here at bar did not show the exact ground of jurisdiction over the subject-matter which was alleged, but it did show a controversy, between an alien and a citizen of the state of Pennsylvania, over which no one questions that the District Court for the Eastern District of Pennsylvania would have had jurisdiction,'
When the plaintiff is an alien, the same jurisdiction over the subject-matter exists as when there is diversity of citizenship. Re Tobin, supra, would be a complete answer after appearance in a suit by an alien to the objection that the action was brought in the wrong court, were it not that Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392, throws some doubt upon whether the decision in Ex parte Tobin, supra, may not have turned upon a question of procedure. Certainly it is true that in Ex parte Harding, supra, the court said that it would not usually consider such questions upon application for mandamus. We believe, nevertheless, that the decisions in Ex parte Tobin, supra, and Ex parte Nicola, 218 U. S. 668, 31 Sup. Ct. 228, 54 L. Ed. 1203, when made, were meant to be upon the merits, though, as Judge Lewis showed in Sagara v. Chicago, etc., Ry. (C. C.) 189 Fed. 220, the question must remain open to some doubt.
However, there is no conceivable reason why a different rule should apply to the case of an alien suing a citizen out of the proper district, from that which governs a citizen so suing, and we do not understand that the defendant so claims.
It is true that the demurrer to the jurisdiction in the last case would seem to have been bad anyway, as it raised only the facts stated on the face of the complaint; but the decision went upon the broader ground that the two pleas could not be coupled, though that was allowed by the state practice. These cases finally dispose of the position that the state statutes are to control on the effect of a general appearance and on the right to couple pleas in abatement with pleas to the merits. They show that Roberts v. Lewis, supra, decided no more than was well settled law before; i. e., that the substantial jurisdiction of the District Court must appear in the record, and that when an allegation has been traversed it does not constitute proof. The unfortunate ambiguity arising from the use of the word “jurisdiction” has, we think, been the reason for supposing that the decision in fact went any further than this.
The case at bar presents only this difference from St. Louis & San Francisco v. McBride, supra, and Western Loan Co. v. Boston & Butte Mining Co., supra, that the defendant in those cases was apprised of all the facts when he coupled together his plea to the merits and his plea to the jurisdiction, while here he was not. We do not think it necessary to decide that the defendant should miscarry for taking the plaintiff at his word, and pleading to the merits upon the faith of an allegation which, if true, would have entitled him to sue in the court which he chose. We do not, therefore, wish to be understood as deciding, where the plaintiff alleges residence in the district of suit, and the defendant traverses the allegation only by denying any information about it, that if, during the proceedings, it appears that the plaintiff cannot prove his allegation, the defendant’s general appearance has bound him.
The proper course, therefore, for the defendant, was to ask leave to withdraw its appearance and to plead specially, a practice well recognized in other situations raising the same question. Hohorst v. Hamburg American Co. (C. C.) 38 Fed. 273 (reversed on another point in Re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211); Jenkins v. York Cliff Improvement Co. (C. C.) 110 Fed. 807; Hagstoz v. Mut. L. Ins. Co. (C. C.) 179 Fed. 569. Such leave would have been by no means a matter of course. It would have rested in the discretion of the court. U. S. v. Armejo, 131 U. S. lxxxii Append., 18 L. Ed. 247; Re Ulrich, 3 Ben. 355, Fed. Cas. No. 14,327. In its consideration the court would have had to inquire how far the defendant knew the truth, or had already been put upon inquiry, before the trial. It is, of course, possible that, had such a practice been adopted, the court in the exercise of its discretion would have concluded not to allow the general appearance to be withdrawn; and in any event the issue was one in which the plaintiff had the right to he heard.
In Leonard v. Merchants’ Coal Co., 162 Fed. 885, 89 C. C. A. 575, this court affirmed the ruling of a referee who in siniilar circumstances dismissed the complaint. The opinion certainly assumes that the New York Code controlled, and that a plea in abatement like this, could stand along with a plea to the_ merits. St. Louis & San Francisco Ry. v. McBride, supra, was apparently not brought to the court’s attention, however, and Western Loan Co. v. Boston & Butte, supra, had' not been decided. These cases are, of course, controlling, even as against a former decision of this court. There was, besides, a feature of the case which distinguishes it as a decision from that now at bar. When the fact appeared that -the plaintiff lived in Brooklyn, the referee took testimony to see whether the defendant had not known the facts at the time of appearing, and found against him on that issue. This was exactly the issue which the plaintiff here had the right, but never the opportunity, to try, and adopted, though a little informally, the only permissible practice. It is true that, after the referee had decided this point against him, the plaintiff in that case asked leave to present further proof upon the issue, which the referee refused to grant upon the ground that the issue would be irrelevant,- a reason which, under the decision we now make, was erroneous. Yet the mere decision, taken narrowly, was correct, in that the referee had once passed upon the issue, and was not bound to reconsider it, even though the grounds for his refusal to do so were not tenable.
In the case at bar the necessary conclusion of the defendant’s theory is that Terowsky, as well as the plaintiff, was not an employé of the company, and that they owed him none of the duties of a master to a servant. The company is therefore not in the business of coal mining at all, in so far as it uses such miners, but is only engaged in letting out contracts to independent contractors, to whom they owe as little duty as to those firms which set up the pumps in their mines. Thus what is confessedly only a means of speeding up the miners and their helpers becomes conveniently an incidental means of stripping from them the protection of the statute. The laborers, under this contention, are to have recourse as an employer only ,to one of their own, without financial responsibility or control of any capital; the miner is to take his chances in the mine without the right to a safe place to work, or any other protection except as an invited person. This misses the whole purpose of such statutes, which are meant to protect those who are at an economic disadvantage.
It is true that the statute uses the word “employed,” but it must be understood with reference to the purpose of the act, and where all the conditions of the relation require protection, protection ought to be given. It is absurd to class such a miner as an independent contractor in the only sense in which that phrase is here relevant. He has no capital, no financial responsibility. He is himself as dependent up
Such statutes are partial; they upset the freedom of contract, and for ulterior purposes put the two contesting sides at unequal advantage; they should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.
The other exceptions do not require consideration, and the judgment is affirmed, with costs.
Dissenting Opinion
(dissenting). I am unable to concur in the opinion of my Associates. The plaintiff below has recovered a verdict for $37,500, which with his consent was reduced so that judgment was entered for $25,036. No one can read the testimony in the record in this case without feeling the utmost sympathy for the plaintiff, whose injuries, resulting from the explosion for which he sues, have left him a pitiable wreck. If we could decide cases upon sympathy, it would be easy to reach a conclusion, and to affirm the judgment. But in the administration of justice courts proceed according to the law, and have no right to proceed contrary thereto, even in a case which appeals as strongly as this does to the pity and compassion of mankind. My Associates recognize as fully as I do the duty which, rests upon us in this respect. The difficulty is that we differ in our understanding of the princioles which are applicable to the unfortunate facts as we find them in the case at bar.
This action was commenced in the United States District Court for the Eastern District of New York. The complaint, which was verified, alleged that the plaintiff was a citizen and resident of the city of New York, borough of Brooklyn, county of Kings, state of New York, and that the defendant was a corporation organized under the laws of Pennsylvania. The defendant answered the complaint, and by its answer put in issue the allegations relating to plaintiff’s citizenship. Afterwards an amended complaint was filed, which contained similar allegations to those in the original complaint as to the plaintiff’s citizenship and residence, except that it was stated that the plaintiff was a resident of the Eastern district of New York. The answer to the amended complaint again put in issue the allegations as to the citizenship and residence of the plaintiff. Upon the trial it was brought out upon cross-examination of the plaintiff that he was in 'fact an alien. He was a Eithuanian and had never been naturalized. As soon as this fact was disclosed, the defendant below objected to the jurisdiction, of the court, and a motion was made to dismiss. The motion was denied, and an exception was duly taken. At the close of the plaintiff’s case the motion to dismiss for lack of jurisdiction was renewed, and again denied, and exception was again taken. At the close of the whole case the plaintiff was permitted, over the objection of the defendant, to amend his complaint by substituting the following paragraph:
*554 “First. That the plaintiff is a resident of the city of New Tort, borough of Brooklyn, county of Kings, state of New York, and Eastern district of New York, and is an alien and subject of the empire of Russia.”
The defendant again renewed the motion to dismiss, and the motion was once more denied, and an exception was again taken. Upon these facts the question presented to this court is whether the District Court of the United States for the Eastern District of New York had the right to hear and decide the case after the fact was disclosed upon the trial that the plaintiff was an alien.
The general rule is that all aliens who are sui juris, and not otherwise specially disabled by the law of the place where the suit is brought, may, maintain suits in the proper courts; it being understood, however, that alien enemies are not within the rule. Taylor v. Carpenter, 3 Story, 458, Fed. Cas. No. 13,784. And no jurisdiction, it has been held, has been conferred upon the federal courts of a case in which both of the parties are aliens. Montalet v. Murray, 4 Cranch, 46, 2 L. Ed. 545; Mossman v. Higginson, 4 Dall. 12, 1 L. Ed. 720. But a federal court has jurisdiction of a suit brought by an alien against a citizen, or by a citizen against an alien. Chappedelaine v. Dechenaux, 4 Cranch, 306, 2 L. Ed. 629; Reinach v. Atlantic, etc., R. Co. (C. C.) 58 Fed. 33. Moreover, the alien need not reside abroad to sue. Breedlove v. Nicolet, 7 Pet. 413, 8 L. Ed. 731.
No question is raised as to the right of the plaintiff below to bring his suit. The riebt to sue, and to sue in a'federal court, is beyond question. But was the suit brought in the right federal court? The Judiciary Act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat.. 73) provided that no civil suit should be brought before the Circuit or District Courts against an inhabitant of the United States in any other district than that whereof he was an inhabitant or in which he shall be found at the time of serving the writ. And this provision was incorporated, in substance, in various acts of Congress subsequently passed. But in 1887 and in 1888 acts were passed which provided that a civil suit must be brought in the district of which the defendant is an inhabitant, except when founded on the residence of parties in different states, in which case it was provided that the case should be brought in a district of which either party is an inhabitant. Act March 3, 1887, c. 373, 24 Stat. 552; Act Aug. 13, 1888, c. 866, 25 Stat. 434.
The suit now before the court could not be based on diversity of citizenship; the plaintiff not being a citizen of the United States. He was bound, therefore, to bring his suit in the district of which the defendant was at the time an inhabitant. And the defendant was not an inhabitant of the Eastern district of New York, nor of any district in New York. But, being incorporated under the laws of Pennsylvania, it was an inhabitant of that state, and could not be an inhabitant of any other state, in which it had not been incorporated, even though it was engaged in business in the other state. In Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274, Chief Justice Taney said in 1839:
“A corporation can Rave no legal existence out of the boundaries of the sovereignty by which it is created. * * * It must dwell in the place of its creation, and cannot migrate to another sovereignty.”
“Tills statement lias been often reaffirmed by this court, with some change of phrase, hut always retaining the idea that the legal existence, the home, the domicile, the habitat, the residence, the citizenship, of the corporation can only be in the state by which it was created, although it may do business in other states whose laws permit it.”
And the court, after a review of all the decisions, held that a corporation incorporated in one state only, could not be compelled to answer, in a Circuit Court of the United States held in another state, in which it has a usual place of business, to a civil suit at law or in equity, brought by a citizen of a different state. In that case the Quincy Mining Company, a corporation of Michigan, having appeared specially for the purpose of taking the objection that it could not be sued in the Southern district of New York, by a citizen of another state, the court said that there could be no question of waiver, and. it denied the petition for a writ of mandamus to the judges of the Circuit Court, of the United States for the Southern District of New York to command them to take jurisdiction of the suit.
In that case the suit was brought by a citizen, and in this' it is brought by an alien. But an alien has no more right than a citizen to sue a corporation in the federal courts in a district in which it is not an inhabitant. In Galveston, etc., Railway Co. v. Gonzales, 151 U. S. 496, 506, 14 Sup. Ct. 401, 405 (38 L. Ed. 240) (1893), the Supreme Court states that:
“The provision that no civil suit shall be brought against any person in any other district than that whereof he is an inhabitant is of universal application, except that, if the, plaintiff be also a citizen, he may bring it in ,his own district, ii he can obtain service upon the defendant in that district.”
And the rule was established that, if an alien desires to commence an action or bring a suit against a citizen of the United States, he must resort to the domicile of the defendant in order to bring it. In that case" a citizen of Mexico brought suit against a Texas corporation in the Circuit Court for the Western District of Texas. The corporation had its principal office within the Eastern district of Texas but operated a line of railway in the Western district, where it maintained a ticket and freight office and depot and had an agent on whom process under the laws of Texas might he served. Defendant appeared specially and objected to the jurisdiction of the court, interposing a plea in abatement.
The question remains whether the objection that the suit was brought in the wrong district was properly and seasonably raised. The plaintiff below alleged in his original and in his amended complaint that he was a citizen of New York. And the defendant in its answer denied that it had -any knowledge or information sufficient to form a belief as to the truth of the allegation. Under the common law a denial in this form was insufficient to puj the facts so denied in issue, and was treated as an admission of the truth of the facts as alleged. See 31 Cyc. 199. A traverse not made positively, hut on information and
It is true that facts either actually or presumptively within the knowledge of the defendant cannot properly be put in issue by a denial of knowledge or. information sufficient to form a belief. But it is not necessary to inquire whether the defendant actually or presumptively knew that the plaintiff was not a citizen at the time it put in its answer. For, if we could assume that its answer was sham and evasive, so long as it remains on the files it raises an issue, even though it might have been the duty of the court to have stricken it out if convinced that it was in fact evasive and a sham. See Smalley v. Isaacson, 40 Minn. 450, 42 N. W. 352; 31 Cyc. 200, 201. According to the law of New York the citizenship of the plaintiff was in issue. And the practice in a federal court in common-law cases conforms to the practice of the state in which the federal court is sitting. In Roberts v. Lewis, 144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579 (1892), the court said:
“Doubtless, so long as the rules of pleading' in the courts of the United States remain as at common law, the requisite citizenship of the parties, if duly alleged or apparent in the declaration, could not be denied by the defendant,'except by plea in abatement, and was admitted by pleading to the merits of the action. Sheppard v. Graves, 14 How. 505 [14 L. Ed. 518], But since 1872, when Congress assimilated the rules of pleading, practice, and 'forms and codes of procedure in actions at law in the courts of the United States to those prevailing in the courts of the several states, all defenses are open to a defendant in the Circuit Court of the United States, under any form of plea, answer, or demurrer, which would have been open to him under like pleading in the courts of the state within which the Circuit CJourt is held.”
In the above case the plaintiff alleged in his petition that he was a citizen of Wisconsin. As such he sued a defendant who was a citizen of Nebraska, suit being brought in Nebraska. Plaintiff alleged his Wisconsin citizenship in his petition. Defendant in his answer denied each and every allegation in the petition. The court held that this put the plaintiff’s citizenship in issue.
In Leonard v. Merchants’ Coal Co., 162 Fed. 885, 89 C. C. A. 575 (1908), this court held that under the New York practice, followed by the federal courts sitting in New York state, a defendant does not waive his right to object to the jurisdiction by including in his answer every defense upon which he relies. And in that case a foreign corporation sued in a federal court entered a general appearance and demurred to the complaint for want of jurisdiction, the complaint alleging no jurisdictional facts. An amended complaint was filed, alleg
I do not question the rule that an act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts, but is rather in the nature of a personal exemption in favor of the defendant and is one which he may waive. Neither do I overlook the fact that in numerous cases it has been held in the federal courts that a general appearance waives the objection that suit is brought in the wrong district. See 3 Cyc. 522. But those cases are not applicable to the facts of this case under the system of pleading and practice established in the local state in which the court below was sitting.
The majority opinion, however, states that a general appearance is a waiver of the objection that the wrong forum has been selected, and that such an objection cannot be raised so long as the general appearance stands. The opinion states that the defendant’s proper course was to ask leave to have a mistrial declared, to withdraw its general appearance, and then to appear specially to object to the forum. I have no doubt that one who puts in a general appearance, having knowledge at the time he does so of irregularities in the service of process, waives them and submits himself to the jurisdiction of the court, and that he cannot thereafter without the consent of the court withdraw his general appearance. In such case he must, of course, apply to the court for leave to withdraw his appearance. That was what was decided in the Matter of Isaac Ulrich, 3 Benedict, 355, Fed. Cas. No. 14,327 (1869). So in United States v. Armejo, 131 U. S. lxxxii, Append., 18 L. Ed. 247, it was held that after the lapse of a term a general appearance could not be changed to a special appearance without leave of the court first obtained. In Hohorst v. Hamburg American Packet Co. (C. C.) 38 Fed. 273 (1889), the court decided that it had power to allow a general notice of appearance to be amended, so as to make it special. In Jenkins v. York Cliffs Imp. Co. (C. C.) 110 Fed. 807 (1901), it was held that, while the withdrawal by a defendant by permission of the court of an appearance entered through a misapprehension relieved him of an unintended waiver of fundamental questions as to the jurisdiction, it did not authorize him to attack the service made upon him on a mere matter of form. In Hagstoz v. Mutual Life Ins. Co. of New York (C. C.) 179 Fed. 569 (1910), it was held that where, in a suit against a foreign corporation doing business in Pennsylvania, the plaintiff, after defendant’s general appearance, amended the praecipe and summons, so as to allege that plaintiff was a resident and citizen of New
These are the cases the majority opinion cites in support of the position assumed that, having entered a general appearance, the defendant could not upon the trial have the case dismissed upon motion made as soon as it appeared from the testimony that the plaintiff was an alien and not a citizen. I am unable to discover anything in any of the opinions rendered in the cases cited which establishes that principle, as applied to the facts of this case. Under the law of the forum in which this suit was commenced the defendant, as we have seen, did not by his answer waive his right to object on the ground that the suit was brought in the wrong forum, provided it developed on the trial that the plaintiff was not a citizen as he had alleged. As his appearance and answer did not in this forum amount to a waiver, there could be no necessity for a formal withdrawal of them. That can be necessary only in a forum where they do amount to a waiver.
I am unable to see that Western Loan & Savings Co. v. Butte & Boston Consolidated Mining Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101 (1907), rules this case and justifies the conclusion reached by my Associates. In that case plaintiff was a citizen of Utah and defendant a citizen of New York, and the action was commenced in the Circuit Court for the District of Montana. The defendant demurred to the complaint on the ground (1) that the court had no jurisdiction; (2) that it had no jurisdiction of defendant; (3) that the complaint did not state facts sufficient to constitute a cause of action; (4) that it was uncertain; (5) that it was unintelligible. The court overruled the demurrer on the first three grounds and sustained it on the fourth and fifth grounds. Thereupon an amended complaint was filed, and a demurrer was again interposed. The court below held that inasmuch as the demurrer was interposed upon jurisdictional and other grounds, and was not confined to jurisdiction over the person alone, but reached the merits of the action, the defendant had waived its personal privilege. Thereafter the trial judge reversed his ruling and dismissed the case for lack of jurisdiction. This final ruling of his was reversed by the Supreme Court, which held that by pleading both to the jurisdiction and the merits defendant had waived its personal privilege; the case being within the general jurisdiction of the court, although instituted in the wrong district.
In the case at bar the facts are different. The defendant in its answer stated that:
“Defendant denies that it has any knowledge or information sufficient to form a belief as to any of the allegations contained in the paragraph or subdivision of the complaint designated ‘1.’ ”
Paragraph 1 of the complaint is as follows:
“1. That the plaintiff is a resident and citizen of the city of New York, borough of Brooklyn, county of Kings, state of New York.”
And when on cross-examination the plaintiff testified that his father never lived in the United States and that he himself had never taken out citizenship papers, the defendant's counsel immediately asked that.
The defendant, in my opinion, was entirely within its rights when it asked to have the case dismissed as soon as the fact was developed that plaintiff was an alien. Until that time it was without knowledge of the plaintiff’s want of citizenship, and so not bound to do more than to put the matter in issue. In the Western Loan & Savings Co. Case, supra, defendant had knowledge of the defect in jurisdiction, and pleaded to the merits at the same time that he pleaded the want of jurisdiction. I think the two cases are" distinguishable in principle.
Rehearing
On Rehearing.
As we adhere to our original opinions after having given the question herein the most careful attention, we think the petition for a rehearing must be denied.
Regarding the request that we certify the question to the Supreme Court, we are unable to see how we can consistently certify a question that we have already decided.
Petition denied.