Opinion
No. 1674.
April 25, 1945.
George S. King and Maurice M. Davis, both of Houston, Tex., for plaintiffs.
E.A. Kelly, of Houston, Tex., and Terry, Cavin Mills and J.G. Howard, all of Galveston, Tex., for defendant.
Action under the Employers' Liability Act by Ruby Schavrda, temporary administratrix of the estate of Albert E. Schavrda, deceased, and others against the Gulf, Colorado Sante Fe Railway Company to recover for the death of the intestate. On defendant's motion to dismiss.
Order in accordance with opinion.
This is a suit under the Employers' Liability Act, 45 U.S.C.A. §§ 51 to 60, and a hearing on defendant's motion to dismiss, because, as defendant says, the suit should have been brought in the Galveston Division instead of this, the Houston Division of this court.
Plaintiffs, residents of Austin County, in the Galveston Division of this court, are alleged to be the legal representatives of Albert E. Schavrda, deceased, and defendant is alleged to be a railway corporation, engaged in Interstate Commerce. It is alleged that deceased met his death while working as a brakeman on defendant's train as a result of the derailment and overturning of one of defendant's locomotives and some of its cars in Wharton County, in the Galveston Division of this court. The plaintiffs charge defendant with negligence, etc., and sue for damages.
Standing upon Section 114, 28 U.S.C.A. the defendant has moved to dismiss upon the ground that defendant resides in the Galveston Division of this court, and that the suit should have been brought there, instead of in the Houston Division.
The applicable portion of Section 114, 28 U.S.C.A., is as follows: "Sec. 114. (Judicial Code, section 53.) Districts containing more than one division; transfer of criminal cases. When a district contains more than one division, every suit not of a local nature against a single defendant must be brought in the division where he resides; but if there are two or more defendants residing in different divisions of the district it may be brought in either division. All mesne and final process subject to the provisions of this section may be served and executed in any or all of the divisions of the district, or if the State contains more than one district, then in any of such districts, as provided in section 113 of this title."
1. When such Liability Act was first passed 35 Stat. pg. 65, it contained no provision regulating the district in which suits were required to be filed, and the general venue statute (now Section 112, Title 28, of the Code) was controlling. Baltimore Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, 136 A.L.R. 1222. On April 5, 1910, Congress passed an act, 36 Stat. pg. 291, 45 U.S.C.A. § 56, requiring that such suits under such Liability Act be brought either in the district of the residence of the defendant or the district in which the cause of action arose, or the district in which defendant "shall be doing business at the time of commencing such action."
The applicable portion of Section 112, 28 U.S.C.A., is as follows: "Sec. 112. (a) Except as provided in sections 113 to 117 of this title, no person shall be arrested in one district for trial in another in any civil action before a district court; and, except as provided in sections 113 to 118 of this title, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."
The applicable portion is now Section 56, 45 U.S.C.A., as follows:
"Sec. 56. Actions; limitation; concurrent jurisdiction of courts; removal of case in State court.
"No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.
"Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States, and no case arising under this chapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States."
There was, however, no provision either in the original Liability Act or the 1910 amendment with respect to the division in which such a suit was required to be brought, and so far as I have been able to find, there was no general provision until the Judicial Code of 1911, 36 Stat. p. 1087, et seq., 28 U.S.C.A. § 1 et seq. There is to be found there Section 53, a part of which is now Section 114, 28 U.S.C.A. It seems clear, therefore, that Section 114 is controlling as to the division in which a suit must be brought under such Liability Act, and that this suit should have been brought in the Galveston Division.
In Baltimore Ohio R. Co. v. Kepner, supra, on which plaintiffs stand, a very liberal construction is given the Liability Act and the 1910 amendment with respect to the district in which such a suit may be brought, but the question of the division in which it must be brought is neither presented nor decided. In Southern Pacific Co. v. Klinge, 10 Cir., 65 F.2d 85, also upon which plaintiffs stand, the question of the division in which the suit must be brought is presented, but not the identical question we have here. There, the question was whether the suit should have been brought in the Northern Division or the Central Division of the District of Utah, and it is held that the suit could have properly been brought in either division, since the railroad was doing business in both divisions. But it is pointed out that Section 114 of 28 U.S.C.A., is neither applicable nor controlling there, because the defendant did not "reside" either in the Northern or the Central Division. Here, under its charter, defendant resides in the Galveston Division. Galveston, H. S.A.R. Co. v. Gonzales, 151 U.S. 496, 498, 14 S.Ct. 401, 38 L.Ed. 248. Seaboard Rice Milling Co. v. Chicago R. Co., 270 U.S. 363, 365, 46 S.Ct. 247, 70 L.Ed. 633.
2. In defendant's motion to dismiss, it says: "In the event this defendant is not entitled to a dismissal of the action, then in the alternative it moves the Court to transfer the cause to the Galveston Division, which is the Division of defendant's residence and also the residence of plaintiffs."
Unquestionably, it would be reasonable, in order to save time, energy and expense, to transfer the case to the Galveston Division, but defendant points to no statute so authorizing. The parties may by May 1, 1945, file a stipulation that the case be transferred to the Galveston Division; otherwise an order will enter, dismissing it.