Ellis v. Davis , 4 F.2d 323 ( 1925 )

DAWKINS, District Judge.

Plaintiff brought this suit for personal injuries arising in tort in the state court for Bowie county, Tex. On motion of defendant it was removed to the District Court of the United States for the Eastern District of Texas. Thereupon plaintiff moved to remand it to the state court, because the ground of removal set up by defendant — i, e., that it was a suit “arising under the Constitution and laws of the United States”— was not well founded, but the motion was denied. This is the first question which we have to review.

As pointed out by the defendant in error, the court is not confined to the allegations of the petition for removal, if the record otherwise discloses a case of which tlie federal court has jurisdiction. Plaintiff’s petition itself shows that he is a resident of the state of Arkansas, his coplaintiff, the Ocean Accident & Guarantee Corporation, Limited, is a foreign corporation authorized to do business in Texas, and thq defendant, St. Louis & Southwestern Railway, of which James C. Davis, Director General of Railroads under federal control, was in charge, is a corporation existing under the laws of the state of Missouri. In those circumstances there existed the required diversity of citizenship, and this was sufficient to vest the lower court with jurisdiction. Bondurant v. Watson, 303 U. S. 278, 26 L. Ed. 447; Little York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656; Hall v. Payne, Agent (D. C.) 274 F. 237; Shirer v. Davis, Agent (C. C. A.) 295 F. 317; In re Mary Dunn, 212 U. S. 374, 29 S. Ct. 299, 53 L. Ed. 558; Davis, Agent, v. Slocomb, 263 U. S. 158, 44 S. Ct. 59, 68 L. Ed. 226; Southern Pacific Co. v. Stewart, 245 U. S. 359, 38 S. Ct. 130, 62 L. Ed. 345.

The remaining error complained of is that the lower court instructed a verdict for defendant. The evidence shows that plaintiff was employed by the International Creosoting & Construction Company (hereinafter called the Tie Company) as an inspector or grader of cross-ties, whose duty it was to inspect and receive for his employer cross-ties manufactured and delivered by others on the line of defendant. T. B. Atkinson was an employee of the defendant, performing the same service for that company. The Tie Company paid for the ties based on plaintiff’s inspection; whereas, it was in turn paid upon the inspection of Atkinson. At times there were discrepancies between the two inspectors, which necessitated further investigation to adjust the differences. The Tie Company therefore obtained from the defendant permission for its inspector to accompany Atkinson on his inspection trips in a motorcar used over defendant’s tracks, in order that these differences might be settled on the spot by the two representatives. The defendant consented to this arrangement upon condition that plaintiff should sign a waiver of liability agaiñ'ái ii:fór injuries received while so engaged. "• Ellis ■ accordingly signed the following waiver in consideration of bis being so transported:

: “This agreement, executed at—station,—, 19—, witnessetb: If the carrier (“carrier” means Missouri Pacific Railroad Company, a corporation, its successors and assigns, and Director General of Railroads, Missouri Pacific Railroad, bis successors and assigns, as their repective interest may appear) will free of charge waive the carrier’s current contrary rule and permit me, the undersigned licensee, to accompany tie inspector, the carrier’s Mo. P. Ry. on a trip contemplated to be made on the carrier’s motorcar between Pine Bluff station and Stamps station, for year 1919. I agree forever to defend, indemnify as an insurer, and save harmless the carrier from, for and against any and all liability, judgments outlays and expenses soever consequent on-any injury," death, damage, loss, or destruction; howsoever suffered or caused by me or by any of my property, while on said motorcar, or in, on or about any premises of the carrier, and also I agree to comply with the requirements of any law in respect of any such transportation: Provided; nothing herein or done hereunder shall be deemed to create or affect any contract of carriage between the carrier and me; and also the carrier shall have the right to withhold or to withdraw any such permission at anytime. [Signed] L. O. Ellis, as Licensee Herein. Address: Texarkana, Ark. Witnesses: T. B. Atkinson. M. Ogles-by, Lewisville, Ark.”

' On October 8,1919, while traveling on the motorcar in question, which wafe under the control of Atkinson, a hog was struck upon the track and the ear wrecked, resulting in serious injuries to Ellis. He therefore brings this suit for damages, joined herein by the insurer of his employer, who had paid him compensation under the Texas Workmen’s Compensation Act (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91). After the evidence was all in, the court directed the jury to find for defendant, for the reason that by the agreement above quoted plaintiff had waived any right to recover for such injuries.

Plaintiff concedes the law to be that, where the right of passage is given gratuitously, such a waiver is binding, but takes the position that the pass-in this instance was furnished, for a valuable consideration, and for that reason such a stipulation is void as a matter of public policy. However, we cannot agree -with that. view. The arrangement was chiefly, if not entirely, for the benefit of the Tie Company and the plaintiff. As heretofore stated, it was paying for the ties upon Ellis’ inspection, but in itfe settlements with the defendant was compelled to accept the inspection of Atkinson, or else wait until the two could, upon further investigation, adjust the differences. In these circumstances, we think the ease falls clearly within the doctrine laid down by the following authorities: Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 24 S. Ct. 408, 48 L. Ed. 513; Boering v. Chesapeake Beach Railway Co., 193 U. S. 442, 24 S. Ct. 515, 48 L. Ed. 742, and authorities cited therein.

Judgment affirmed.