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In 1910, section 6 of said act was amended to read in part as follows: "The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States." 36 Stat. L. p. 291, c. 143 (45 USCA § 56; Comp. St. § 8662).

Congress evidently intended by this amendment that a plaintiff should have an election as to where a case arising under the act should be brought, and, if brought in a state court of competent jurisdiction, that it should not be removed to any court of the United States. If this case was one therefore arising under the act hereinbefore referred to the state court had jurisdiction. The entire theory of removal in this case is that the allegations of the petition that deceased was engaged in interstate commerce at the time of his injury and death were false and fraudulent, that it must have been so known to plaintiff at the time action was commenced, and that the attempt to thus plead a case under the Employers' Liability Act amounted to a fraud on the jurisdiction of the federal

court.

The petition filed by plaintiff in the state court alleged that deceased and defendant were both engaged in interstate commerce; that Crume's death was caused by a collision between defendant's train on which he was working with another of defendant's trains, and in part is as follows:

"Plaintiff further states that on or about the 30th day of June, 1924, the said J. M. Crume was in the employ of the defendant as a car supply helper, in a certain car loaded with supplies; that he was assisting and facilitating the movement and transportation of said supplies through and between the states of Colorado and New Mexico, and filling requisitions, disbursing and unloading said supplies at various of defendant's stations along its line in the states of Colorado and New Mexico for the immediate use of the defendant in its commerce between the several states; that said car of supplies was a part of a train operated by the defendant carrying freight and goods between the states of Colorado and New Mexico and other states of the United States; that said train could not proceed on its interstate journey, carrying its cargo of goods destined to other states, until defendant's stations along the line were furnished by said supply car with the supplies necessary for the immediate use of the defendant in carrying on its aforesaid

commerce between the several states; that plaintiff's interstate duties were to fill orders and requisitions for such supplies and unload and disburse the same at the various stations along defendant's line as said train proceeded on its interstate journey as aforesaid, and that said train could not proceed on its journey until said orders and requisitions for such supplies were filled, disbursed, and unloaded at the stations as aforesaid; that, at the time of the injuries and death of the said J. M. Crume on said day, he was filling orders and requisitions of said supplies and unloading and disbursing the same in the manner and for the purposes aforesaid, and thereby engaged in, and assisting the defendant in carrying on its business of interstate commerce by railroad."

The petition for removal set out the various allegations of plaintiff's petition relative to the claimed interstate commerce, and stated that such allegations were not true either in law or fact, and then proceeded to set forth facts which it claimed showed that decedent was not engaged in interstate commerce, viz. that at the time in question he was assisting in furnishing supplies such as stationery, tools, oil, and other articles from a supply car to stations and other places of deposit, not for immediate use in the conduct of the railroad's business; that the supplies were being moved from point to point on petitioner's line, not for immediate use, but for the purpose of replenishing supplies and materials at the local stations of petitioner; that said decedent had nothing to do with the movement and transportation of said supplies, and that all the connection he had with it was accepting and filling orders on requisitions furnished to him; that whether the supplies would be used in interstate or intrastate commerce could not be determined at the time of furnishing them, and that decedent was not engaged in interstate commerce, nor in any work so closely connected therewith as to bring him within the Federal Employers' Liability Act or Acts and their amendments, and that the allegations of plaintiff's petition as to decedent's employment in interstate commerce were untrue, and were made for the fraudulent purpose of defeating the right of removal to the federal court.

The motion to remand reiterated the statements of the original complaint, and again set forth the work in which decedent was engaged, and claimed that it was so closely related to interstate commerce as to be practically a part thereof, and denied any fraudulent purpose in the matter. Both the

25 F.(2d) 23

petition for removal and the motion to remand were verified.

[1] The court did not determine the question upon the pleadings, but considered a number of depositions that had been taken by plaintiff's attorney, to which procedure plaintiff's attorney, while insisting that the court had no right to determine the question of interstate commerce because it was practically determining the merits of the case, did not enter serious objection-in fact took no exception thereto. While it is true that the question of interstate commerce goes to the merits of plaintiff's case, yet if, as stated in Clark v. Chicago, R. I. & P. Ry. Co. et al. (D. C.) 194 F. 505, "fraud has been employed in presenting the facts for the purpose of defeating the federal jurisdiction, then it is the duty of this court so to declare, even though the possible effect might be ultimately to defeat the entire cause of action." However, a court should be careful not to determine the merits of a case in passing on a jurisdictional question.

[2] The real issue raised as the basis for removal is the claimed fraudulent action of plaintiff in asserting in its petition in the state court that decedent was engaged in interstate commerce at the time of his injury and death. The right of removal to the federal court could not be defeated by a fraudulent allegation that the case arose out of employment by decedent in interstate commerce if there was no basis for such claim, and, even though such claim be made in the petition filed in the state court, it may be shown by petition for removal to be merely a fraudulent device to prevent removal to the federal court. Chesapeake & Ohio Railway Co. v. Cockrell, Adm'r, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Wecker v. National Enameling Co., 204 U. S. 176, 27 S. Ct. 184, 51 L. Ed. 450, 9 Ann. Cas. 757.

[3] The allegations of a petition for removal, if the same are properly verified, must be accepted by the state court as true. Stone v. South Carolina, 117 U. S. 430, 6 S. Ct. 799, 29 L. Ed. 962; Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144. While the statutes provide no method of determining the questions involved in the removal to the federal court, or remanding to the state court, of a cause of action, the procedure is fairly well established by the decisions of the courts.

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[4] If no issue is taken in the federal court as to the statements of a duly verified petition for removal, plaintiff is presumed to assent to the truth thereof, and defendant is not called upon to produce proof to sustain such allegations. Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144.

[5] It is well settled that the right of removal is not established by petition for removal which merely traverses the facts of plaintiff's petition. Kraus v. Chicago, B. & Q. R. Co. et al. (C. C. A.) 16 F.(2d) 79; Chesapeake & Ohio Ry. Co. v. Cockrell, Adm'r, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Southern Railway Co. v. Lloyd, 239 U. S. 496, 36 S. Ct. 210, 60 L. Ed. 402. [6] A mere formal motion to remand is in the nature of a demurrer to the removal petition (Bradshaw v. Bowden et al. [D. C.] 226 F. 323), and the court will determine such motion upon the sufficiency of the allegations of said petition.

[7] Plaintiff may, however, take issue in its motion to remand with the statements in the petition for removal and raise the question as to the truth thereof, and the motion to remand in such situation is in the nature of a plea in abatement. Dillon on Removal of Causes, § 158, says on this subject: "If the petition, in connection with the record, is sufficient on its face but states as ground of removal facts which are not true, as, for example, in regard to citizenship, or value, where the value does not appear in the pleadings, issue may be taken thereon in the Circuit Court by a plea in the nature of a plea in abatement; but such an inquiry cannot be gone into in the state court. A plea in abatement to a petition for removal will not be tested by technical rules, but it is sufficient if it sets out fairly and with adequate certainty matters of fact which, if true, negative the jurisdiction of the federal court. And it appears that when the allegations of the petition are thus traversed the burden is on the party at whose instance the suit was removed to establish the facts necessary to give jurisdiction to the Circuit Court."

[8] Issues of fact arising upon a petition for removal are to be determined by the federal court. Chesapeake & Ohio Ry. Co. v. Cockrell, Adm'r, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Burlington, Cedar Rapids and Northern Ry. Co. v. Dunn, 122 U. S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159; Boatmen's Bank of St. Louis, Mo., v. Fritzlen

In 1910, section 6 of said act was amended to read in part as follows: "The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States." 36 Stat. L. p. 291, c. 143 (45 USCA § 56; Comp. St. § 8662).

Congress evidently intended by this amendment that a plaintiff should have an election as to where a case arising under the act should be brought, and, if brought in a state court of competent jurisdiction, that it should not be removed to any court of the United States. If this case was one therefore arising under the act hereinbefore referred to the state court had jurisdiction. The entire theory of removal in this case is that the allegations of the petition that deceased was engaged in interstate commerce at the time of his injury and death were false and fraudulent, that it must have been so known to plaintiff at the time action was commenced, and that the attempt to thus plead a case under the Employers' Liability Act amounted to a fraud on the jurisdiction of the federal court.

The petition filed by plaintiff in the state court alleged that deceased and defendant were both engaged in interstate commerce; that Crume's death was caused by a collision between defendant's train on which he was working with another of defendant's trains, and in part is as follows:

"Plaintiff further states that on or about the 30th day of June, 1924, the said J. M. Crume was in the employ of the defendant as a car supply helper, in a certain car loaded with supplies; that he was assisting and facilitating the movement and transportation of said supplies through and between the states of Colorado and New Mexico, and filling requisitions, disbursing and unloading said supplies at various of defendant's stations along its line in the states of Colorado and New Mexico for the immediate use of the defendant in its commerce between the several states; that said car of supplies was a part of a train operated by the defendant carrying freight and goods between the states of Colorado and New Mexico and other states of the United States; that said train could not proceed on its interstate journey, carrying its cargo of goods destined to other states, until defendant's stations along the line were furnished by said supply car with the supplies necessary for the immediate use of the defendant in carrying on its aforesaid

commerce between the several states; that plaintiff's interstate duties were to fill orders and requisitions for such supplies and unload and disburse the same at the various stations along defendant's line as said train proceeded on its interstate journey as aforesaid, and that said train could not proceed on its journey until said orders and requisitions for such supplies were filled, disbursed, and unloaded at the stations as aforesaid; that, at the time of the injuries and death of the said J. M. Crume on said day, he was filling orders and requisitions of said supplies and unloading and disbursing the same in the manner and for the purposes aforesaid, and thereby engaged in, and assisting the defendant in carrying on its business of interstate commerce by railroad."

The petition for removal set out the various allegations of plaintiff's petition relative to the claimed interstate commerce, and stated that such allegations were not true either in law or fact, and then proceeded to set forth facts which it claimed showed that decedent was not engaged in interstate commerce, viz. that at the time in question he was assisting in furnishing supplies such as stationery, tools, oil, and other articles from a supply car to stations and other places of deposit, not for immediate use in the conduct of the railroad's business; that the supplies were being moved from point to point on petitioner's line, not for immediate use, but for the purpose of replenishing supplies and materials at the local stations of petitioner; that said decedent had nothing to do with the movement and transportation of said supplies, and that all the connection he had with it was accepting and filling orders on requisitions furnished to him; that whether the supplies would be used in interstate or intrastate commerce could not be determined at the time of furnishing them, and that decedent was not engaged in interstate commerce, nor in any work so closely connected. therewith as to bring him within the Federal Employers' Liability Act or Acts and their amendments, and that the allegations of plaintiff's petition as to decedent's employment in interstate commerce were untrue, and were made for the fraudulent purpose of defeating the right of removal to the federal court.

The motion to remand reiterated the statements of the original complaint, and again set forth the work in which decedent was engaged, and claimed that it was so closely related to interstate commerce as to be practically a part thereof, and denied any fraudulent purpose in the matter. Both the

25 F.(2d) 23

petition for removal and the motion to remand were verified.

[1] The court did not determine the question upon the pleadings, but considered a number of depositions that had been taken by plaintiff's attorney, to which procedure plaintiff's attorney, while insisting that the court had no right to determine the question of interstate commerce because it was practically determining the merits of the case, did not enter serious objection-in fact took no exception thereto. While it is true that the question of interstate commerce goes to the merits of plaintiff's case, yet if, as stated in Clark v. Chicago, R. I. & P. Ry. Co. et al. (D. C.) 194 F. 505, "fraud has been employed in presenting the facts for the purpose of defeating the federal jurisdiction, then it is the duty of this court so to declare, even though the possible effect might be ultimately to defeat the entire cause of action." However, a court should be careful not to determine the merits of a case in passing on a jurisdictional question.

[2] The real issue raised as the basis for removal is the claimed fraudulent action of plaintiff in asserting in its petition in the state court that decedent was engaged in interstate commerce at the time of his injury and death. The right of removal to the federal court could not be defeated by a fraudulent allegation that the case arose out of employment by decedent in interstate commerce if there was no basis for such claim, and, even though such claim be made in the petition filed in the state court, it may be shown by petition for removal to be merely a fraudulent device to prevent re moval to the federal court. Chesapeake & Ohio Railway Co. v. Cockrell, Adm'r, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Wecker v. National Enameling Co., 204 U. S. 176, 27 S. Ct. 184, 51 L. Ed. 450, 9 Ann. Cas. 757.

[3] The allegations of a petition for removal, if the same are properly verified, must be accepted by the state court as true. Stone v. South Carolina, 117 U. S. 430, 6 S. Ct. 799, 29 L. Ed. 962; Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144. While the statutes provide no method of determining the questions involved in the removal to the federal court, or remanding to the state court, of a cause of action, the procedure is fairly well established by the decisions of the courts.

[4] If no issue is taken in the federal court as to the statements of a duly verified petition for removal, plaintiff is presumed to assent to the truth thereof, and defendant is not called upon to produce proof to sustain such allegations. Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144.

[5] It is well settled that the right of removal is not established by petition for removal which merely traverses the facts of plaintiff's petition. Kraus v. Chicago, B. & Q. R. Co. et al. (C. C. A.) 16 F.(2d) 79; Chesapeake & Ohio Ry. Co. v. Cockrell, Adm'r, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Southern Railway Co. v. Lloyd, 239 U. S. 496, 36 S. Ct. 210, 60 L. Ed. 402. [6] A mere formal motion to remand is in the nature of a demurrer to the removal petition (Bradshaw v. Bowden et al. [D. C.] 226 F. 323), and the court will determine such motion upon the sufficiency of the allegations of said petition.

[7] Plaintiff may, however, take issue in its motion to remand with the statements in the petition for removal and raise the question as to the truth thereof, and the motion to remand in such situation is in the nature of a plea in abatement. Dillon on Removal of Causes, § 158, says on this subject: "If the petition, in connection with the record, is sufficient on its face but states as ground of removal facts which are not true, as, for example, in regard to citizenship, or value, where the value does not appear in the pleadings, issue may be taken thereon in the Circuit Court by a plea in the nature of a plea in abatement; but such an inquiry cannot be gone into in the state court. A plea in abatement to a petition for removal will not be tested by technical rules, but it is sufficient if it sets out fairly and with adequate certainty matters of fact which, if true, negative the jurisdiction of the federal court. And it appears that when the allegations of the petition are thus traversed the burden is on the party at whose instance the suit was removed to establish the facts necessary to give jurisdiction to the Circuit Court."

[8] Issues of fact arising upon a petition for removal are to be determined by the federal court. Chesapeake & Ohio Ry. Co. v. Cockrell, Adm'r, 232 U. S. 146, 34 S. Ct. 278, 58 L. Ed. 544; Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Burlington, Cedar Rapids and Northern Ry. Co. v. Dunn, 122 U. S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159; Boatmen's Bank of St. Louis, Mo., v. Fritzlen

et al. (C. C. A.) 135 F. 650; Donovan v. Wells, Fargo & Co. (C. C. A.) 169 F. 363, 22 L. R. A. (N. S.) 1250.

[9] The burden is upon the petitioner to establish the allegations of a petition for removal based on fraud where the same are specifically denied. Clark v. Chicago, R. I. & P. Ry. Co. et al. (D. C.) 194 F. 505; Carson v. Dunham, 121 U. S. 421, 7 S. Ct. 1030, 30 L. Ed. 992; Wilson v. Republic Iron & Steel Co. et al., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144; Kansas City Suburban Belt Ry. Co. v. Herman, 187 U. S. 63, 23 S. Ct. 24, 47 L. Ed. 76.

[10] Plaintiff here in its motion to remand joined issue on the allegations of the petition for removal, and thereby an issue was presented, viz. that of fraudulently depriving the federal court of jurisdiction of the case; that issue was one to be heard and determined by the federal court, and that court was at liberty in its discretion to hear testimony or accept affidavits thereon. Clark v. Chicago, R. I. & P. Ry. Co. et al. (D. C.) 194 F. 505; Martin v. New York, N. H. & H. R. Co. et al. (D. C.) 241 F. 696; Wecker v. National Enameling and Stamping Co., 204 U. S. 176, 27 S. Ct. 184, 51 L. Ed. 450, 9 Ann. Cas. 757; Lewis on Removal of Causes, p. 265.

The affidavits considered by the court showed that decedent was employed on a supply train consisting of some 26 cars, 3 or 4 of them being supply cars, operating between Albuquerque, N. M., and Denver, Colo., on defendant's interstate railway; that this train carried numerous and sundry supplies such as picks, shovels, wrenches, oil, waste, light bulbs, battery supplies, stationery, and blanks of various kinds, the same to be unloaded for the use of defendant at stations along defendant's line between Albuquerque and Denver where such supplies had been requested; that decedent and other supply men on the train had possession of orders and requisitions for supplies from defendant's agents in different towns through which the train was to pass; that the supplies were collected at the doors of the car by decedent and others, and preparations made to unload them when the stations were reached; that the work of unloading was performed by him (this is admitted in the petition for removal); that these supplies were articles which had in practically all instances come from another state; that the tools delivered at various stations were to be used in work on defendant's track, the oil was to be used in switch lights within two or three days after

delivery, the picks and shovels were to be used in surfacing defendant's tracks; that some of the supplies consisted of forms for the valuation of baggage checks and monthly freight reports; that these various forms were to be used for reports as to matters relating to interstate commerce shipments; that decedent's post of duty on the train was in one of the supply cars, being the one in which his body was found after the wreck at Castle Rock; that a large number of tools were to be delivered at Sedalia, which was beyond the point of the accident, and that it would have been decedent's business to deliver these tools; that some of the stationery was to be delivered at Castle Rock, the place of the accident.

Mr. Langworthy, who was a section foreman, testified that he sent in his requisition for supplies 10 or 12 days before the supply car was to come through, and the question was asked him:

"Q. You order only those tools needed for immediate use? A. Well, yes. "Q. You don't aim to keep an excess of supplies? A. No."

This train carried 22 cars of slag for the purpose of ballasting defendant's right of way at Sedalia, Colo. Freight also was received by the train moving from points within the state of Colorado. There was other evidence introduced of this same general nature.

It is apparent that this train was operating in interstate commerce. United States v. Chicago & N. W. Ry. Co. (D. C.) 157 F. 616; St. Joseph & G. I. Ry. Co. v. United States (C. C. A.) 232 F. 349; Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 30 S. Ct. 155, 54 L. Ed. 280; North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Illinois Central R. R. Co. v. Louisiana R. R. Commission of Louisiana, 236 U. S. 157, 35 S. Ct. 275, 59 L. Ed. 517. This is not seriously questioned, but it is strongly urged that decedent was not engaged in interstate commerce at the time of the accident resulting in his death. Of course, he could be an employee of the railroad and not be engaged in such commerce. Defendant concedes that tools are instrumentalities used in interstate commerce when they are actually being used in the maintenance or repair of tracks or rolling stock, but that the relation of deceased's employment in unloading tools to their actual use and application in maintaining and repairing the

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