182 Ga. 779 | Ga. | 1936
Mattox, a resident of Georgia, sued the Southern Railway Company, a non-resident corporation, to recover damages for personal injuries alleged to have been caused by the defendant’s negligence while the plaintiff was engaged in its service. He alleged that the defendant had procured him to sign a release from liability, and he prayed that this release be surrendered and canceled. The suit was in two counts, each placing the damages at $15,000. In the first count it was alleged that the suit was brought under the Federal employers’ liability act. ,No reference to this act was made in the second count. The defendant filed its petition, and gave bond according to statute, whereby it sought removal of the case to the Federal court, on account of diversity of citizenship. The plaintiff demurred to the
The correctness of the ruling complained of will depend on whether the railroad company and the plaintiff were engaged in interstate commerce at the time of the injury. Paragraph 9 of count 1 alleges: “At the time of sustaining said serious injury in the employ of the defendant railroad the plaintiff was trucking a freight shipment from the warehouse platform of the defendant into a freight-car stationed on tracks of the defendant, which tracks were opposite and adjacent to a platform of the defendant’s warehouse, and which car was so stationed for the purpose of loading and unloading.” There was no other, allegation showing or attempting to show that the plaintiff was engaged in interstate commerce at the time of the injury, and the averment just quoted does not show that the plaintiff was so engaged. He can not prevent removal merely by showing that the railroad company was alone engaged in such commerce. While count 1 merely failed to show that the plaintiff and the company were engaged in interstate commerce on the occasion of the injury, the allegations of count 2 show that the shipment being handled by the plaintiff at the time of the injury consisted of a shipment of goods from Elberton, Georgia, to Hartwell, ■ Georgia, and thus affirmatively disclosed that the shipment was intrastate.
The question “ whether a cause of action was removable from State to Federal court because of diversity of citizenship, or whether it was under Federal employers’ liability act and could not be removed, was to be determined from the pleadings as they stood when petition for removal and bond were filed.” Northern Trust Co. v. Grand Trunk Ry. Co., 282 Ill. 565 (118 N. E. 986). It is essential that it should appear that the plaintiff was injured while employed in interstate commerce. Illinois Central R. Co. v. Behrens, 233 U. S. 473 (34 Sup. Ct. 646, 58 L. ed. 1051). “There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed by the carrier in such commerce.” Pederson v. D., L. & W. R. Co., 229 U. S. 146, 150 (33 Sup. Ct. 648, 57 L. ed. 1125). The true test always is, is the work in question a part of the interstate
Judgment affirmed.
