Moseley v. Chamberlain

18 Wis. 700 | Wis. | 1864

By the Court,

DIXON, O. J.

The action was ’ commenced in the county court of the county of Milwaukee by the plaintiff, a citizen and resident of this state, against the defendant, a citizen and resident of the state of Ohio. The defendant applied under the twelfth section of the judiciary act of 1789, (U. S. Stat. at Large, p. 79) for the removal of the cause into-the district court of the United States for this district, which was refused. I hold that the defendant’s' petition and proceedings for that purpose were regular, and that the cause ought to have been removed. I think, therefore, that the county court lost jurisdiction of the case, and that the judgment should, for that reason, be reversed. My brethren, however, are of a different opinion. They hold that congress has no power to provide for the removal of a cause from a state to a federal court, and consequently, that the application was properly denied. But upon the law governing the merits of the case they disagree. Justice PAINE adheres to his opinion expressed in Chamberlain v. Mil. & Miss. R. R. Co., 11 Wis., 238, that an employee can recover of his employer for an injury occasioned by the negligence of another employee engaged in the same business; while Justice Cole thinks that he cannot. This diversity of opinion between them makes it necessary for me to express my opinion upon this question, in order that the cause may be determined, although upon the merits I think we have no jurisdiction of it. I recede from the opinion of the majority, in which I then concurred, in Chamberlain v. Mil. & Miss R. R. Co., and agree with Justice Cole that the doctrine of that case must be overruled.

In coming to thi¿ conclusion I have no words of apology to offer, and but few observations. The argument oh both sides was long since exhausted. I recede more from that deference and respect which is always due to the enlightened and well considered opinions of others, than from any actual change in my own views. The judgment of the majority in that case is sustained by weighty and powerful reasons. Like reasons aré not wanting on the other side, and that side is sustained by the almost unanimous judgments of all the courts both of England and this country. I think I am bound to yield to this unbroken current of judicial opinion. At the time that decision was announced, -it was supposed that the doctrine had been or would be sustained by the courts of Ohio and Indiana; but by the reports which have more recently reached us, it appears that they hold the very opposite (Whaalm v. The Mad River & Lake Erie R. R. Co., 8 Ohio St., 249; The Ohio & Miss. P. R. Co. v. Tindall, 13 Ind., 366); so that now the case stands alone, in opposition to the decisions of all the courts of both countries, and I think, with Justice Oole, that it must be overruled.

Judgment reversed, and a new trial awarded.