Petition for Writ of Certiorari — Union Railroad v. Imm (No. 249)

ge ale ©

LIBRARY JUL pe 1961

SUPREME COURT. U. &

Oftice-Supreme Court, us |

JAMES R. BRUWNING. Clerk

IN THE

Supreme Court of the United States :

OCTOBER TERM, 1961

no. 24.9

UNION RAILROAD COMPANY, Petitioner,

a

ROBERT C. IMM, SR., Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ELDER W. MARSHALL, Esq.

Counsel for Petitioner

747 Union Trust Building

Pittsburgh, Pa.

SMITH BROS CO. INC... LAW PRINTERS. 434-436 BLVD OF ALLI' S. PITTSBURGH 19, PA.

PAGE

a aa a ho oe ss m6 os 1

a eee bac scnses 2

Ri eee eee 2

a i oo we stew doo aw ow 2

I, I sn hence eececs ness 3

Argument

I. Whether District Courts Have Plenary Juris-

diction of Cases Arising Under the FELA Is

an Imporant Question of Federal Law Which

Has Not Been, But Should Be, Decided by

ed dae aoe dd dhe Kk dams «4 2 0 a

II. The Decision of the Court Below That the

Federal Employer’s Liability Act Is an Act

of Congress “Regulating Commerce” Within

the Meaning of Title 28 USC § 1337 Is in

Conflict With the Applicable Decisions of

RE Se ne 5

ERE EGRESS ESE RCE Ca a 11

eet adie e when she os.e nek «hans 17

ee eh ee teh gna bee sede sed 18

heh a patie es Mines 6d 6 24

aaa hale Wh wa aa ew wae x eee ay 28

ii

TABLE OF CITATIONS

CASES

Carroll v. United States, 354 U.S. 394, 399 (1957) ..

Commiasioner of Internal Revenue v. Acker, 361 U.S.

ee og Se dy a's dé wicea 8-6 »

First Employer's Liability Case, 207 U.S. 463 (1908)

Healy v. Ratta, 292 U.S. 263 (1934) ...............

Moore v. C. & O. R/Co., 291 U.S. 205 (1934)........

O’Donnell v. Elgin, J. & E. R. Co., 338 U.S. 384 (1949)

Romero v. International Terminal Operating Co., 358

— hg ee ee are

Second Employer’s Liability Case, 223 U.S. 1 (1912)

Shamrock Oil and Gas v. Sheets, et al., 313 U.S. 100

I ee a eee Ce pic ogy el eae vos Fe

STATUTES

Act of April 22, 1908, c. 149, 35 Stat. 650, as

amended; The Federal Employer’s Liability Act

I as oe ERA ee ee Keo

Act of April 5, 1910, c. 143, § 1, 36 Stat. 291........

Judicial Revision of 1911, March 3, 1911, c. 231,

Cae ee kc oo ew oe doe ke ews

SUMMER COG OE BUEL, FOE... 2. ees ecnce

Act of June 25, 1948, c. 646, 62 Stat. 930; as amended

by the Act of July 25, 1958, P.L. 85-554, $1, 72

ee a Be

Act of June 25, 1948, c. 646, 62 Stat. 931; 28 U.S.C.

$ 1337

es hh 6 Oe 88 OE SOS ee See ee 8 ee Oe Ce SO 2 ee Se OO

as 6808S 4 6 soe SS CO Dw

OTHER AUTi:ORITIES

Biographical Directory of the American Congress,

1774-1949, U.S. Government Printing Office,

1950. House Document No. 607...............

1 Moore’s Federal Practice, 606 (2d ed.)..... aren

7,8

8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1961

BP oc kee es

UNION RAILROAD COMPANY, Petitioner,

Vv.

ROBERT C. IMM, SR., Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

a)

_ Union Railroad Company prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the Third Circuit, entered in the

above case on April 24, 1961.

OPINIONS BELOW

The order of the United States District Court for

the Western District of Pennsylvania, which was the

subject of the appeal, was not accompanied by an opin-

ion and the case is not reported. The opinion cf the

United States Court of Appeals for the Third Circuit is

reported in F2d —— and is appended hereto (ap-

pendix A, pp. 11 to 16).

Statutes Involved.

JURISDICTION

The judgment sought to be reviewed was dated and

entered April 24, 1961.

The jurisdiction of this court is invoked under the

provisions of 28 U.S.C. § 1254 (1).

. QUESTION PRESENTED

Whether a district court has jurisdiction of an ac-

tion brought under the Federal Employer’s Liability Act

if the amount in controversy is less than $16,000.

STATUTES INVOLVED

1. The Act of June 25, 1948, c. 646, 62 Stat. 930;

as amended by the Act of July 25, 1958, P.L. 85-554,

$1, 72 Stat. 415; 28 U.S.C. § 1331, which provides:

“(a) The district courts shall have original juris-

diction of all civil actions wherein the matter in

controversy exceeds the sum or value of $10,000,

exclusive of interest and costs and arises under the

Constitution. laws, and treaties of the United

States.

*‘b) Except when express provision therefore is

otherwise made in a statute of the United States, or

the plaintiff is finally adjudged to be entitled to re-

cover less than the sum or value of $10,000, com-

puted without regaid to any set off or counterclaim

to which the defendant may be adjudged to be en-

titled, and exclusive of interests and costs, the dis-

trict court may deny costs to the plaintiff and, in

addition, may impose costs on the plain’ iff.”

Statement of the Case.

2. The Act of June 25, 1948, c. 646, 62 Stat. 931; .

28 U.S.C. § 1337, which provides:

“The district courts shall have original jurisdiction

of any civil action or proceeding arising under any

Act of Congress regulating commerce or protecting

trade and commerce against restraints and monopo-

lies.”

3. The Act of April 22, 1908, c. 149, 35 Stat. 65,

as amended; The Federal Employer’s Liability Act. 45

U.S.C. § 51-60, the provisions of which are set forth in

Appendix C, pp. 18 to 23.

STATEMENT OF THE CASE

In an action commenced in July, 1960, the plaintiff

sought to recover damages for a sprained ankle and re-

duced earnings during the time he was recovering there-

from. The complaint did not allege that the amount in

controversy exceeded $10,000 and no specific sum was

claimed as damages. Jurisdiction was based on the Fed-

eral Employer’s Liability Act.

By answer, the defendant asserted that the court

lacked jurisdiction because the amount actually in con-

troversy was less than $10,000, exclusive of interest and

costs, and, at the non-jury trial in the District Court,

moved for judgment on the same grounds. The District

Court entered judgment for the plaintiff in the sum of

$500 and costs, but at the defendant’s request, the trial

judge made a finding that the amount in controversy at

all times was less than $10,000.

The defendant appealed, raising the single issue of

the court’s jurisdiction. The court below affirmed.

(Court of Appeals’ Opinion, appendix A, pp. 11 to 16.

Court of Appeals’ Judgment, appendix B, p. 17).

Argument.

ARGUMENT

I.

Whether District Courts Have Plenary Jurisdiction of

Cases Arising Under the FELA is an Important Ques-

tion of Federal Law Which Has Not Been, But Should

Be, Decided by This Court.

Inasmuch as the Federal Employer’s Liability Act

specifically creates a right of action, there is no doubt

that FELA cases are cases “arising under’’ federal law.

The important question is whether such jurisdiction

must be grounded on 28 U.S.C. § 1331, which requires

that the amount in controversy exceed $10,000, or

whether jurisdiction exists without regard to the amount

in controversy, under 28 U.S.C. ; 1337, which confers

plenary jurisdiction on district courts in civil actions

arising under any act of Congress regulating commerce.

This question has never been answered by this

court. There are dicta in O’Donnell v. Elgin, J. & E. R.

Co., 338 U. S. 384 (1949) and Moore v. C. & O. R. Co.,

291 U. S. 205 (1934), but these cases involved claims

far in excess of the requisite jurisdictional amount. * .

O’Donnell, the sum demanded was $85,000. In Moore,

the demand was $77,600 and the verdict was $30,000.

The question is an important one. In many dis-

tricts, FELA cases comprise a substantial proportion of

the total trial docket. These districts are frequently

those with the most crowded dockets. It may be fairly

estimated that in the Western District of Pennsylvania,

out of which this case arises, perhaps as many as 30%

to 35% of the total cases are FELA cases. The vast ma-

Argume?.

jority of these cases produce less than $10,000 in settle-

ment or judgment.

Moreover, the holding in this case by necessary im-

plication will be applicable to suits brought under the

Jones Act (46 U.S.C. § 688).

Thus, the question involved in this case is whether

the great number of cases filed in United States Dis-

trict Courts under the Federal Employer’s Liability Act

or under the Jones Act, which actually involve less than

$10,000, should be decided in state courts.

Il.

The Decision of the Court Below that the Federal Em-

ployer’s Liability Act is an Act of Congress “Regulating

Commerce” Within the Meaning of Title 28 USC §1337

is in Conflict With the Applicable Decisions of This

Court.

The decision of the court below is in conflict with

the applicable decisions of this Court in the following

respects:

1. The decision of the court below is incon-

sistent with the legislative history of the statute,

which the Court of Appeals entirely disregarded.

2. The Court of Appeals admittedly gave this

jurisdictional statute a liberal, rather than a strict

construction.

3. The court be‘ow failed to observe the differ-

ence in the meaning of the phrase “regulating com-

merce” as a measure of the Constitution’s grant of

legislative power to Congress and as a measure of

Congress’ grant of jurisdiction to the district

courts.

Argument.

A. Legislative History.

Section 1337 of title 28 first appeared in the Federal

Judicial Code as paragraph 8 of section 24 of the Judi-

cial Revision of 1911 (March 3, 1911, c. 231, § 24, 18, 36

Stat. 1092.) The legislative history of the Judicial Re-

vision of 1911 establishes that the 61st Congress did

not regard actions brought under the Federal Em-

ployer’s Liability Act to be suits arising under an act

of Congress regulating commerce, within the meaning

of that paragraph.

In $24 of the Judicial Code of 1911, Congress at-

tempted to list all of the various provisions of the exist-

ing law which conferred jurisdiction on the district

courtc regardless of jurisdictional amount, yet it omitted

all reference to the Federal Employer's Liability Act.

(See excerpts from Senate Report No. 388, Part 1, Sixty

First Congress, Second Session. Printed in Appendix E,

pp. 28 to 35).

This omission cannot be regarded as an inadvert-

ence. These legislators were too keenly aware of the

FELA to have thus overlooked it. The first Federal Em-

ployer’s Liability Act has been enacted by the 59th

Congress in 1906. When it was declared unconstitutional

by this court. The second Employer’s Liability Act was

passed by the 60th Congress in 1908. In 1909, when a

Circuit Court in Texas gave a restrictive interpretation

to the venue requirements as applied to FELA cases,

Congress promptly, on April 5, 1910, amended the FELA

by adding thereto the venue rrovisions of ‘6 | Act of

April 5, 1910, c. 143, $1, 36 Stat. 291.:

Practically all of tne men who were members of the

Congress which enacted the Judicial Revision of 1911

Argument.

had been members of the Congress the preceding spring

when the Act of April 5, 1910, c. 143 was debated and

adopted. Between 60% and 70°: of them had been mem-

bers of the 60th Congress which had enacted the second

Employer’s Liability Act. (See Biographical Directory

of the American Congress 1774-1949, United States Gov-

ernment Printing Office, 1950, House Document No.

607).

The Committee reports on the Judicial Revision of

1911 listed all of the existing statutes which the revi-

sors felt were included within the phrase in paragraph

8 of *Z4, “Acts of Congress regulating commerce”. The

title list did not include the Act of April 22, 1908, c. 149

$1, 45 U.S.C. $51 et seq. 35 Stat. 65 (The Federal Em-

ployer’s Liability Act) or the Act of April 5, 1910, c. 143

<1, 36 Stat. 291, 45 U.S.C. s 56 (amending s 6 of the Fed-

eral Employer’s Liability Act'. See Appendix E, pp. 28

to 35.

The omission of these acts shows conclusively that

the Congress which first enacted the provisions now con-

tained in $1337 of title 28 did not regard the FELA as

an act regulating commerce, within the meaning of that

section. To disregard these clear indications of Cong-

ressional intent in the interpretation of a jurisdictional

statute, as did the court below, is in confiict with the

principles stated in Romero v. International Terminal

Operating Co., 358 U. S. 354 (1959); Carroll v. United

States, 354 U. S. 394, 399 '1957:; Commissioner of In-

ternal Revenue v. Acker, 361 U. S. 87, 94 (1939).

In its brief below, petitioner drew the court’s atten-

tion to the pertinent legislative history of the act, but,

curiously, no mention whatsoever is made of this fea-

ture of the case in the Opinion of the Court below.

Argument.

B. Lberal interpretation of Jurisdictional Statute.

The court below felt constrained to give a broad

interpretation to the phrase “regulating commerce’”’ in

order to keep such suits within the competence of fed-

eral courts regardless of the amount in controversy, be-

cause it believed federal courts necessarily become ex-

perts in such litigation. The same observation could be

made of all suits arising under federal law. The over-

riding admonition of this Court, however, is that juris-

dictional provisions should be given a strict, rather than

a liberal interpretation: Romero v. International Termi-

nal Operating Co., supra.; Carroll v. United States,

supra.; Shamrock Oil and Gas v. Sheets, et al 313 U. S.

100 (1941: ; Healy v. Ratta, 292 U.S. 263 (1934).

C. “Constitutional meaning” applied to a Statute.

In support of its decision, the court below cited the

two decisions of this Court dealing with the constitu-

tionality of the Federal Employer’s Liability Acts: First

Employer’s Liability Case, 207 U. S. 463 (1908) and

Second Employer’s Liability Case, 223 U. S. 1 (1912).

In this, the Court disregarded admonitions of this

Court against applying an interpretation in a Constitu-

tional problem woodenly to the same phrase in a juris-

dictional statute: Romero v. International Terminal Op-

erating Co., supra., 358 U. S. at 368 et seq.; 1 Moore’s

Federal Practice, 606 (2d ed).

The provisions of paragraph 8 of section 24 of the

Judicial Revision of 1911 and the later reenactment in

$1337 of title 28 have been held to justify federal cog-

nizance of suits arising under a wide variety of federal

te

Argument.

enactment. These include the Railway Labor Act, Fair

Labor Standards Act, Agricultural Marketing Agree-

ment Act of 1947, Agricultural Adjustment Act of 1938,

Interstate Commerce Act, Communications Act of 1934,

National Labor Relations Act, Shipping Act, Carriage of

Goods by Sea Act, Steamboat Inspection Laws, Tennes-

see Valley Authority Act, United States Warehouse

Act, Civil Aeronautics Act of 1938, Labor-Management

Relations Act of 1947, Natural Gas Act, and Labor-Man-

agement Reporting and Disclosure Act of 1959. The

courts have treated this jurisdictional provision as dy-

namic enough to include later enactments, and perhaps

with a broader view of interstate commerce than that

held by the members of the 61st Congress. However,

all of these statutes have characteristics which are con-

sistent with the original Congressional intent and which

distinguishes them from the FELA.

All such acts, like the original Interstate Commerce

Acts themselves, and unlike the Federal Employer’s

Liability Act, are positive laws imposing ‘iefinite reg-

ulatory provisions of some kind on those engaged in

commerce. In most of them, there is a federal agency

charged specifically with carrying out or supervising

compliance with the federal regulation in question. In

each of the enactments listed above, Congress has in

some way laid down a positive law imposing a duty or

proscribing some conduct of one engaged in interstate

commerce. The appropriateness of federal jurisdiction

is apparent.

Congress has not done this in the FELA. The Fed-

eral Employer's Liability Act itself lays down no.regu-

lation upon the railroad employer. It merely provides

the employee with a right of action to recover for certain

10

Argument.

types of injuries and removes certain common law de-

fenses. (Appendix C, pp. 18 to 23).

Congress has traditionally left to the states the

adjudication of controversies which involve small

amounts, even though they arise under federal law. The

Congress which first enacted the provisions now set

forth in §1337 of title 28 clearly indicated that it did not

consider the FELA to be among the acts of Congress

“regulating Commerce” to which reference was made in

paragraph 8 of section 24 of the Judicial Revision of

1911. More than fifty years after Congress refused to do

so, the court below has decided that the Federal Em-

ployer’s Liability Act should be added to the list of cases

covered by that enactment. This is error in a matter of

sufficient importance to call for the issuance of a writ

of certiorari.

Respectfully submitted,

ELDER W. MARSHALL,

Counsel for Petitioner

11

Appendix A—Opinion of the Court.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13,501

ROBERT C. IMM, SR.

Vv.

UNION RAILROAD COMPANY, a corporation,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA.

Argued April 4, 1961

Before GOODRICH, MCLAUGHLIN and HASTIE,

Circuit Judges.

Opinion of the Court

(Filed April 24, 1961)

By Goopricnu, Circuit Judge.

This appeal raises the very interesting question

whether a suit under the Federal Employers Liability

Act can be brought in federal court where the amount

involved is less than $10,000. The plaintiff in this case

sought damages for a sprained ankle and reduced

earnings during the time he was recovering. In a non-

jury trial he recovered a judgment for $500. At the de-

fendant’s request the trial judge made a finding that the

amount in controversy was at all times less than $10,000.

The defendant makes two points. The first has to

do with Section 6 of the FELA which provides that:

“an action may be brought in a district court of the

United States, in the district of the residence of the de-

12

Appendix A—Opinion of the Court.

fendant, or in which the cause of action arose, or in

which the defendant shall be doing business at the time

of commencing such action. .. .” 45 U.S.C.A. § 56.

The railroad contends that this is a venue provision

and does not have anything to do with jurisdiction. It

was called a venue provision by the Supreme Court in

Baltimore & O. R. Co. v. Kepner, 314 U.S. 44 (1941). The

legislative history furnished us by the appellant’s care-

ful research and discussed in the case just cited shows

pretty clearly that what Congress had in mind was an

amendment to the statute following the decision of

Cound v. Atchison, T. & 8. F. R. Co., 173 Fed. 527 (W.D.

Tex. 1909). The holding of the Court in that case re-

quired an injured plaintiff to sue his employer in the

state of incorporation, an obvious hardship in some

cases. So we agree with the appellant that Section 6 is

a venue provision only even though very eminent au-

thority has implied it has wider significance. !

The argument then turns to Section 1337 of the

Judicial Code, 28 U.S.C. The relevant language follows:

“The district courts shall have original jurisdiction of

any civil action or proceeding arising under any Act of

Congress regulating commerce or protecting trade and

commerce against restraints and monopolies.” Here the

railroad argues that the phrase “acts regulating com-

merce” should be given a narrow meaning limited to

statutes where the Congress has laid some positive regu-

lations imposing a duty or prescribing some conduct. It

points out that words in the Constitution and a statute

do not necessarily carry the same meaning and calls our

1 Hart & Wechsler, The Federal Courts and The

Federal System 730, 731 n. 39 (1953).

13

Appendix A—Opinion of the Court.

attention to Professor Wechsler’s language in Federal

Jurisdiction and the Revision of the Judicial Code, 13

Law & Contemporary Problems 216, 224-25.- We need

not disagree with that general proposition but do not see

how it affects us here. It is alao urged that statutes con-

ferring jurisdiction on federal courts who are, of course,

courts of limited jurisdiction, should be narrowly inter-

preted and such narrow interpretation would lead us to

impose the $10,000 requirement for foundation of juris-

diction.

Appellant concedes that very eminent authority has

taken a position contrary to its view. Thus Professor

Charles Bunn, in the Jurisdiction and Practice of the

Courts of the United States 71-2 (1949) says:

“When the words were used in 1911 ‘acts regu-

lating commerce’ pretty clearly meant ‘The Act to

Regulate Commerce’...

“Whether this was the original meaning or not,

recent cases make it clear that it is not the present

one. ‘Acts regulating commerce’ are coming rapidly

to mean all acts whose constitutional basis is the

commerce clause.”

2 See also, Romero v. International Terminal

Operating Co., 358 U.S. 354, 363-68 (1959); 1 Moore,

Federal Practice ° 0.60[2] at 606-07 (2d ed. 1953).

3 Among the statutes which have been held to be

acts “regulating commerce” under s 1337 and its prede-

cessor are:

Agricultural Adjustment Act of 1938, 7

U.S.C.A. $$ 1281 et seq., in Mulford v. Smith, 307

US. 38 (1939); Antitrust Acts, 15 U.S.C.A. $$1-31,

in Parker v. Brown, 317 U.S. 341 (1943); Carriage

of Goods by Sea Act, 46 U.S.C.A. $$ 1300 et seq., in

The Crispin Co. v. Lykes Bros. Steamship Co., 134

14

Appendix A—Opinion of the Court.

Still later and more specifically he adds:

“An action by an employee of an interstate

railroad against his employer for personal injury

incurred in the line of duty depends on (and there-

fore ‘arises under’) the Federal Employers Liability

Act . .. which is ‘an Act regulating commerce.’”’

Id. at 133.

See also, Barron & Holtzoff, Federal Practice and Pro-

cedure § 38 (1950); S. Rep. No. 1830, 85th Cong. 2d Sess.

(1958), 2 U.S. Code Cong. & Ad. News 3103 (1958) (re-

porting the 1958 amendments to $$ 1931, 1332 of 28

U.S.C.—federal question and diversity jurisdiction ).

F. Supp. 704 (S.D. Tex. 1955); Civil Aeronautics

Act, 49 U.S.C.A. §$ 401 et seq. (now 49 U.S.C.A.

$$1301 et seq.), in Killian v. Frontier Airlines, Inc.,

150 F. Supp. 17 (D. Wyo. 1957) ; Communications

Act of 1934, 47 U.S.C.A. $$ 151 et — Pugach v.

Dollinger, 277 F.2d 739 (2d Cir. 1960), aff’d per

curiam, 28 U.S. Law Week 4247 (Feb. 28, 1961);

Fair Labor Standards Act, 29 U.S.C.A. ss 201 et

seq., in Johnson v. Butler Bros., 162 F.2d 87 (8th

Cir. 1947); National Labor Relations Act, 29

U.S.C.A. §$ 151 et seq., in Capital Service, Inc. v.

NLKB. 347 U.S. 501 (1954); Railway Labor Act,

45 U.S.C.A. $3151 et seq., in Fetter v. Southern

Pacific ©o., 358 U.S. 326 (1958); Shipping Act, 46

U.S.C.A. $$ 801 et seq., in Pa. Motor ck Ass’n

v. Port of Phila. Terminal Ass’n, 183 F. Supp. 910

(E.D. Pa. 1960); Steamboat Inspection Laws, 46

U.S.C.A. § 404, in Bryant v. Rucker, 111 F. Supp.

308 (S.D. Ala. 1953); Tennessee Valley Authority,

16 U.S.C.A. $$ 831-83ldd, in Grant v. TVA, 44 F.

Supp. 589 (E.D. Tenn. 1941); United States Ware-

house Act, 7 U.S.C.A. $$ 241 et seq., in Young &

Jones v. Hiawatha Gin & Mfg. Co., 17 F.2d 193 (S.D.

Miss. 1927).

15

Appendix A—Opinion of the Court.

That the statute is considered by the Supreme

Court to be an act regulating commerce is shown in the

discussion in both the employers’ liability cases. 207

U.S. 463 (1908) ; 223 U.S. 1 (1912).

We think that the Federal Employers Liability Act

is based on the power of Congress to regulate interstate

commerce. If it is not that, there seems to be no basis

for such legislation. Nor do we think that a remedial

statute of this kind should be so narrowly interpreted

as to jurisdiction to oust federal courts of a type of liti-

gation in which they necessarily become expert because

they have so much of it. We think that there is jurisdic-

tion in the federal district courts regardless of the

amount claimed under the Federal Employers Liability

Act and we think such jurisdiction is in furtherance of

the purpose of the statute.

The judgment of the district court will be affirmed.

A true Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

16

Appendix A—Order.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13,501

ROBERT C. IMM, SR.

Vv.

UNION RAILROAD COMPANY,

a corporation, Appellant

Present: GOODRICH, MCLAUGHLIN and HASTIE,

Circuit Judges.

Order

It is HEREBY#®RDERED that the Opinion of this Court

in the case filed April 24, 1961, be and it hereby is

amended by inserting before the last paragraph of the

opinion on page 4 the following paragraph:

“All that we are deciding in this case is that a

suit under the FELA is based upon a statute which is a

regulation of interstate commerce coming under 28

U.S.C. $1337 and that the jurisdictional amount of Sec-

tion 1331 is not required. The impact of Section 1337

on the Jones Act cases will be considered when the prob-

lem presents itself. See Wade v. Rogala, 270 F.2d 280

(3d Cir. 1959) ; Jordine v. Walling, 185 F.2d 662 (3d Cir.

1950) ; Branic v. Wheeling Steel Corp., 152 F.2d 887 (3d

Cir. 1945), cert. denied, 327 U.S. 801 (1946). In those

cases the application of £1337 to the Jones Act was not

raised.” |

BY THE COuRT,

GOODRICH

May 11, 1961. Circuit Judge.

17

Appendix B—Judgment.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13,501

ROBERT C. IMM, SR.

vs.

UNION RAILROAD COMPANY,

a corporation,

Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Present: GOODRICH, MCLAUGHLIN and HASTIE,

Circuit Judges.

Judgment

This cause came on to be heard on the record from

the United States District Court for the Western Dis-

trict of Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the

said District Court in this case be, and the same is

hereby affirmed, with costs.

Attest:

Ipa O. CRESKOFF

Clerk

April 24, 1961

18

Appendix C—Federal Employer’s Liability Act.

APPENDIX C

Federal Employer’s Liability Act

45 U.S.C. § 51. Liability of common carriers by railroad,

in interstate or foreign commerce, for injuries to

employees from negligence; definition of employees.

Every common carrier by railroad’ while engaging

in commerce between any of the several States or Ter-

ritories, or between any of the States and Territories,

or between the District of Columbia and any of the

States or Territories, or between the District of Colum-

bia or any of the States or Territories and any foreign

nation or nations, shall be liable in damages to any per-

son suffering injury while he is employed by such car-

rier in such commerce, or, in case of the death of such

employee, to his or her personal representative. for the

benefit of the surviving widow or husband and children

of such employee; and, if none, then of such employee’s

parents; and if none, then the next of kin dependent

upon such employee, for such injury or death resulting

in whole or in part from the negligence of any of the

officers, agents, or employees of such carrier, or by

reason of any defect or insufficiency, due to its negli-

gence, in its cars, engines, appliances, machinery, track,

roadbed, works, boats, wharves, or other equipment.

Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of interstate

or foreign commerce; or shall, in any way directly or

closely and substantially, affect such commerce as above

set forth shall, for the purposes of this chapter, be con-

sidered as being employed by such carrier in such com-

merce and shall be considered as entitled to the benefits

19

Appendix C—Federal Employer’s Liability Act.

of this chapter. (Apr. 22, 1908, ch. 149, § 1, 35 Stat. 65;

Aug. 11, 1939, ch. 685, § 1, 53 Stat. 1404.)

45 U.S.C. § 52. Carriers in Territories or other posses-

sions of United States.

Every common carrier by r-ilroad in the Terri-

tories, the District of Columbia, the Panama Canal Zone,

or other possessions of the United States shall be liable

in damages to any person suffering injury while he is

employed by such carrier in any of said jurisdictions, or,

in case of the death of such employee, to his or her per-

sonal representative, for the benefit of the surviving

widow or husband anu children of such employee; and,

if none, then of such employee’s parents; and, if none,

then of the next of kin dependent upon such employee,

for such injury or death resulting in whole or in part

from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect

or insufficiency, due to its negligence, in its cars, engines,

appliances, machinery, track, roadbed, works, boats,

wharves, or other equipment. (Apr. 22, 1908, ch. 149,

< 2, 35 Stat. 65.1

45 U.S.C. $ 53. Contributory negligence; diminution of

damages.

In all actions on and after April 22, 1908 brought

against any such common carrier by railroad under or

by virtue of any of the ~rovisions of this chapter to

recover damages for personal injuries to an employee,

or where such injuries have resulted in his death, the

fact that the employee may have been guilty of contrib-

utory negligence shall not bar a recovery, but the dam-

ages shall be diminished by the jury in proportion to the

amount of negligence attributable to such employee:

20

Appendix C—Federal Employer's Liability Act.

Provided, That no such employee who may be injured

or killed shall be held to have been guilty of contributory

negligence in any case where the violation by such com-

mon carrier of any statute enacted for the safety of

em:ployees contributed to the injury or death of such

employee. (Apr. 22, 1908, ch. 149, $ 3, 35 Stat. 66.)

45 U.S.C. § 54. Assumption of risks of employment.

In any action brought against any common carrier

under or by virtue of any of the provisions of this chap-

ter to recover damages for injuries to, or the death of,

any of its employees, such employee shall not be held

to have assumed the risks of his employment in any

case where such injury or death resulted in whole or in

part from the negligence of any of the officers, agents,

or employees of such carrier; and no employee shall be

held to have assumed the risks of his employment in any

case where the violation by such common carrier of any

statute enacted for the safety of employees contributed

to the injury or death of such employee. (Apr. 22, 1908,

ch. 149, s 4, 35 Stat. 66; Aug. 11, 1939, ch. 685, $1, 53

Stat. 1404.)

45 U.S.C. § 55. Contract, rule, regulation, or device ex-

empting from liability; set-off.

Any contract, rule, regulation, or device whatso-

ever, the purpose or intent of which shall be to enable

any common carrier to exempt itself from any liability

created by this chapter, shail to that extent be void:

Provided, That in any action brought against any such

common carrier under or by virtue of any provisions of

this chapter, such common carrier may set off therein

any sum it has contributed or paid any insurance, relief

benefit, or indemnity that may have been paid to the in-

21

Appendix C—Federal Employer’s Liability Act.

jured employee or the person entitled thereto on account

of the injury or death for which said action was brought.

(Apr. 22, 1908, ch. 149, s 5, 35 Stat. 66).

45 U.S.C. § 56. Actions; limitation; concurrent jurisdic-

tion of courts.

No action shall be maintained under ¢ti:is 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 tne

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 tie United States under

this chapter shall be concurrent with that of the courts

of the several States. (Apr. 22, i908, ch. 149, s 6, 35

Stat. 66; Apr. 5, 1910, ch. 143, ¢ 1, 36 Stat. 291; Mar. 3,

1911, ch. 231, s 291, 36 Stat. 1167; Aug. 11, 1939, ch. 685,

$ 2, 53 Stat. 1404; June 25, 1948, ch. 646, s 18, 62 Stat.

989.) 45 U.S.C. $57. Who included in term “common

carrier.”

The term “common carrier” as used in this chapter

shall include the receiver or receivers or other persons

or corporations charged with the duty of the manage-

ment and operation of the business of a common car-

rier. (Apr. 22, 1908, ch. 149, s 7, 35 Stat. 66.)

45 U.S.C. : 58. Duty or liability of common carriers and

rights of employees under other acts not impaired.

Nothing in this chapter shall be held to limit the

duty or liability of common carriers or to impair the

rights of their employees under any other Act or Acts

of Congress. (Apr. 22, 1908, ch. 149, s 8, 35 Stat. 66.)

22

Appendix C—Federal Employer’s Liability Act.

45 U.S.C. § 59. Survival of right of action of person

injured.

Any right of action given by this chapter to a per-

son suffering injury shall survive to his or her personal

representative, for the benefit of the surviving widow

or husband and children of such employee, and, if none,

then of such employee’s parents; and, if none, then of

the next of kin dependent upon such employee, but in

such cases there shall be only one recovery for the same

injury. (Apr. 22, 1908, ch. 149, § 9, as added Apr. 5,

1910, ch. 143, $ 2, 36 Stat. 291.)

45 U.S.C. $ 60. Penalty for suppression of voluntary in-

formation incident to accidents; separability clause.

Any contract, rule, regulation, or device whatso-

ever, the purpose, intent, or effect of which shall be to

prevent employees of any common carrier from furnish-

ing voluntarily information to a person in interest as

to the facts incident to the injury or death of any em-

ployee, shall be void, and whoever, by threat, intimida-

tion, order, rule, contract, regulation, or device whatso-

ever, shall attempt to prevent any person from furnish-

ing voluntarily such information to a person in interest,

or whoever discharges or otherwise disciplines or at-

tempts to discipline any employee for furnishing volun-

tarily such information to a person in interest shall, upon

conviction thereof, be punished by a fine of not more

than $1,000 or imprisoned for not more than one year,

or both such fine and imprisonment, for each offense:

Provided, That nothing herein contained shall be con-

strued to void any contract, rule or regulation with re-

spect to any information contained in the files of the

carrier, or other privileged or confidential reports.

23

) Appendix C—Federal Employer's Liability Act.

If any provision of this chapter is declared uncon-

stitutional or the applicability t::ereof to any person or

circumstances is held invalid the validity of the re-

mainder of the chapter and the applicabui.:ty of such pro-

vision to other persons and circumstcices shall not be

affected thereby. (Apr. 22, 1908, ch. 149, s 10, as added

Aug. 11, 1939, ch. 685, § 3, 53 Stat. 1414.)

24

Appendix D—Appendizx in Court of Appeals.

APPENDIX D

Appendiz in Court of Appeals

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT C. IMM, SR. )

Civil

ee p Action

UNION RAILROAD COMPANY,

P 60-463

Nov. 17

Nov. 18

Nov. 23

a corporation

Docket Entries

Complaint filed.

Answer filed.

Non-Jury Trial begun and concluded ktefore

J. Wham. Trial memo filed.

Order entered directing that judgment be en-

tered in favor of the PIff. and against the dft.

in the amount of $500.00 and costs. (Wham,J.)

Pursuant to the above order of court, judg-

ment is hereby entered in favor of Robert C.

Imm, Sr. and against the dft. Union Railroad

Co. in the amount of $500 and costs. James H.

Wallace, Jr., Clerk.

Motion to Amend for Additional Findings

under Rule 52 filed by dft.

Order entered, written on Motion filed

11-23-60, approving and adopting the addi-

tional findings and conclusion. (Wham, J.)

Notice of appeal filed by dft.

Original record mailed U.S. Court of Appeals.

25

Appendix D—Appendix in Court of Appeals.

Complaint

. AND Now comes the plaintiff above named and for

his cause of action against the defendant sets forth as

follows:

1. The plaintiff is an individual who resides at 132

Warren Drive, New Kensington, Pennsylvania, and is

a citizen of the Commonwealth of Pennsylvania and of

the United States of America.

2. The defendant is a corporation duly organized

and existing under and by virtue of the laws of the

Commonwealth of Pennsylvania and has a principal

place of business in the City of Pittsburgh, County of

Allegheny, Commonwealth of Pennsylvania, and is a

citizen of the Commonwealth of Pennsylvania, United

States of America.

3. Jurisdiction of this Honorable Court is con-

ferred by virtue of the Federal Employers’ Liability

Acts of Congress.

4. At all times pertinent hereto the plaintiff was

employed by the defendant corporation as a brakeman

in the furtherance of interstate commerce.

5. On or about June 10, 1957, at approximately

12:15 a.m. while the plaintiff was employed by the de-

fendant and in the furtherance of interstate commerce

at a place on the defendant corporation property known

as Rankin Field, he was caused to sustain a personal

injury as a result of the negligence of the defendant

corporation while acting as its agent, servant or em-

ployee on or about the business of said corporation and

under direct control and supervision.

26

Appendix D—Appendiz in Court of Appeals.

As a result of the injuries, which injuries were

caused by the negligence of said defendant, plaintiff

was caused to suffer considerable pain, suffering and in-

convenience and some injuries to his left ankle.

WHEREFORE, plaintiff claims of the defendant a ver-

dict of judgment and costs.

Respectfully submitted,

MCARDLE, HARRINGTON &

MCLAUGHLIN

DENNIS C. HARRINGTON

Attorney for Plaintiff

Defendant's Answer

& * * * e o

SECOND DEFENSE

The court lacks jurisdiction because the amount

actually in controversy is less than $10,000 exclusive of

interest and costs.

* * * 2 * a e

GILBERT J. HELWIG

REED, SMITH, SHAW & MCCLAy

Attorneys for Defendant

Order of Court

AND Now, to-wit, this 17th day of November, 1960,

after hearing testimony in the above named case, it is

hereby ORDERED that judgment be entered in favor of

the plaintiff and against the defendant in the amount of

Five Hundred Dollars ($500) and costs.

FRED L. WHAM

27

Appendix D-—Appendiz in Court of Appeals.

Motion for Additional Findings Under Rule 52

Pursuant to Federal RCP 52 defendant requests

that the court make the following findings in the above

case:

1. Jurisdiction is claimed by virtue of the Federal

Employer's Liability Act ‘45 USC 51 et seq.). No other

basis for this court’s jurisdiction is claimed.

2. The injury for which plaintiff sought redress

in this action was a sprained ankle, which caused his

absence from work for one day, which was followed by

a period of reduced earning power of approximately

seven weeks. After seven weeks, the plaintiff's dis-

ability had no effect upon his earning power, but his

injuries resulted in some pain and suffering for an addi-

tional period of approximately eleven months. There-

after, the plaintiff was fully recovered from the effects

of his injury.

3. At no time did the plaintiff claim to be entitled

to as much as $10,000 on account of the injuries for

which redress was sought in this action and he had

no reasonable expectation of being awarded as much as

$10,000.

4. The amount in controversy in this action is,

and at all times, has been, less than $10,000.

(8s) GILBERT J. HELWIG

(s) REED, SMITH, SHAW & McCLay

Attorneys for Defendant

November 23, 1960

Appendix E—Senate Report No. 388.

Order

Foregoing findings and conclusions submitted this

28th day of November, 1960 are approved and adopted

as additional findings and conclusions of this Court in

the above case. FRED L. WHAM

U. S. Dist. Judge

APPENDIX E

Senate Report No. 388, Part 1, Sixty-first Congress,

Sccond Session, to accompany S 7031, Revision of Laws

—Judiciary. Title 28, March 14, 1910.

CALENDAR NO. 372

61st CONGRESS, / ( REPT. 388,

2d Session. ee / Part 1.

S. 7031

Revision of Laws—Judiciary Title

MARCH 14, 1910.—Ordered io be printed.

Mr. HEYBURN, from the Special Joint Committee on Re-

vision and Codification of the Laws of the United

States, submitted the following

REPORT—PART 1.

[To accon.pany S. 7031.)

The Joint Committee on Revision and Codification

of the Laws of the United States submit herewith an

explanatory statement of each section contained in Sen-

ate Bill 7031.

This bill includes the first 12 chapters of the judi-

ciary title, being title 13 of the Revised Statutes cf 1878,

with all legislation amending, repealing, or modifying

the same. Chapter 13, on habeas corpus, chapter 15, on

29

Appendix E— Senate Report No. 388.

injuries, and chapterr 20 and 21, on the Court of Claims,

are included within this bill.

NOT INCLUDED.

Chapter 14, on district attorneys, marshals, and

clerks.

Chapter 16, on fees.

Chapter 17, on evidence.

Chapter 18, on procedure.

Chapter 19, on limitations.

Your committee has thought it best to present the

portions of the judiciary title relating to the organiza-

tion, power, and jurisdiction of the courts first before

reporting the chapters relating more particularly to

procedure.

The plan of the organization of courts proposed by

the bill differs from existing law in that it combines the

present jurisdiction of the district and circuit court in

the district court and abolishes the present circuit court.

The circuit court of appeals provided for in this bill,

while having the same general jurisdictional features as

the existing circuit court of appeals, is the court to

which appeals lie from the reorganized district courts,

and from which appeals lie to the United States Supreme

Court within the limitations expressed in the bill.

The changes proposed by the bill are generally in

form rather than substance. Where the substance of

the law would seem to be changed it is generally because

of the reorganization and consolidation of the courts.

The existing law contains a large number of provi-

sions applicable only within the jurisdiction named in

the provision. Your committee has endeavored to state

30

Appendix E—Senate Report No. 388.

the rule of general application wherever it was possible

to do so in the interest of uniformity.

The enumeration of the jurisdiction of each district

is based upon existing law. Many changes have been

made and many are being made from time to time by

the enlargement or change of the jurisdiction of these

courts, and these changes will in all probability continue

to be made, but the bill reported is based upon the exist-

ing statutes. Even since the bill was reported courts of

last resort have passed upon some questions of practice

and procedure vitally affecting the jurisdiction and the

manner of ita exercise by the courts and to some extent

dealing with the question as to the power of the courts.

As these changes are suggested, even during the con-

sideration of this bill, we will ask the Senate to permit

such amendments as may conform to the principles that

may be so established.

The chapters of the judiciary title that are not in-

cluded in this bill are of such character that their provi-

sions will necessarily be adapted to the final conclusions

of the Senate on this bill, and your committee has

thought best to defer reporting them as a part of this

bill because of the obvious changes that may be necessary

in them because of the action of Congress on this bill.

Your committee has been working continuously upon

the judiciary title for more than six months and have

given the most careful attention to every section con-

tained in it as well as those that have been omitted

from it. Those sections and acts and parts of acts at

present upon the statute books that have been omitted

from this work have been omitted either because that

they have been specifically repealed or passed upon by

the courts and declared to be either abolished or in

31

Appendix E—Senate Report No. 388.

violation of the Constitution, or because their subject-

matter has been transferred and included within pro-

visions outside of the judiciary title or because they no

longer have a place on the statute books in view of the

consolidation of the jurisdiction of the present circuit

and district courts and the reorganization of the circuit

court of appeals.

Your committee presents with the bill a report in

two parts.

Part 1 contains a succinct reference to every section

of the Revised Statutes and every existing statute incor-

porated either in form or substance into the bill reported

stating the status of the law and the reasons for changes

where changes have been made.

Part 2 contains the text of the bill as reported with

the existing law printed on the page opposite each of the

sections referred to. [Emphasis added |

This report is thus divided for convenience during

the consideration of the bill.

Your committee hopes to be able to report the re-

maining chapters of the judiciary title so that they can_

be considered as amendments to this bill so merged that

upon the final action of Congress of all the chapters

relating to the judiciary title taken together may con-

stitute a single act.

DISTRICT COURTS—JURISDICTION.

Section 24:

In the various paragraphs of this section have been

merged the jurisdiction now vested in both the circuit

and the district courts.

Appendix E—Senate Report No. 888.

Paragraph 1: The jurisdiction of the circuit courts

as to suits at common law, or in equity, or on the ground

of diverse citizenship, etc., is conferred by the first sec-

tion of the act of August 13, 1888 (1 Supp.. 433), the

purpose of which was to correct the mistakes contained

in an eevlier act. In United States v. Sayward (160 U. S.,

493, 498) the Supreme Court construed the language

of that section, and proceeded to restate it in its own

language. The committee in dra: ting this paragraph fol-

lowed the language of the Supreme Court as construed

in that case.

With this is merged the jurisdiction of the district

courts conferred by the fourth paragraph of section 563,

Revised Statutes. Paragraphs 1, 2, and 3, of section 629,

were superseded by the act of 1888, above referred to.

At the end of the paragraph the committee has

added a clause to the effect that as to the remaining

clauses of the section the court shall have jurisdiction

without regard to the sum or value of the property in

dispute. This is for the purpose of removing all doubt

upon the point, and is to meet claims similar to those

advanced in Miller-Magee Co. v. Carpenter (34 Fed. Rep.,

433) and in Ames v. Hager (36 Fed. Rep., 129).

* * * * * ~

>

[At p. 13]

Paragraph 8: This paragraph declares the jurisdic-

tion of cases arising under the interstate commerce acts

now vested in the circuit and district courts.

* * * * * * *

Appendix E—Senate Report No. 388.

*

[At p. 30]

Sec.

REPORT — PART 2

* * * * *

SENATE BILL

CHAPTER Two

DISTRICT COURTS—JURISDICTION

24. Original jurisdiction.

Par.

1.

Where the United States are plaintiffs;

and. of.civil suits at common law or in

equity.

Of crimes and offenses.

Of admiralty causes, seizures, and prizes.

Of suits under any law relating to the

slave trade.

Of cases under internal revenue, cus-

toms, and tonnage laws.

Of suits under postal laws.

7. Of suits under the patent, the copyright,

11.

12.

and the trademark laws.

Of suits for violation of interstate com-

merce laws.

Of penalties and forfeitures.

Of suits on debentures.

Of suits for injuries on account of acts

done under laws of the United States.

Of suits concerning civil rights.

34

Appendix E—Senate Report No. 388.

Sec.

24. Original jurisdiction—Continued.

13

14

15.

16.

17.

18.

19.

20.

21.

22.

23.

Of suits against persons having knowl-

edge of conspiracy, etc.

Of suits to redress the deprivation, under

color of law, of civil rights.

Of suits to recover certain offices.

Of suits against national-banking asso-

ciations.

Of suits by aliens for torts.

Of suits against consuls and vice-consuls.

Of suits and proceedings in bankruptcy.

Of suits against the United States.

Of suits for the unlawful inclosure of

public lands.

Of suits under immigration and contract-

labor laws.

Of suits against trusts, monopolies, and

unlawful combinations.

24. Of suits concerning allotments of land to

25.

& &

Park.

Indians.

Of partition suits where United States

is joint tenant.

Appellate jurisdiction under Chinese-exclusion laws.

Appellate jurisdiction over Yellowstone National

27. Jurisdiction of crimes on Indian reservations in

South Dakota.

SENATE BILL

[At p. 30]

Sec. 24. The district courts shall have original

jurisdiction as follows:

[At p. 46]

Eighth. [Of all suits and proceedings arising

under any law regulating commerce.] [C. R., 1067.

4 Feb., 1887, 24 Stat. L., 382, c. 104, s. 9; 1 Supp., 530.

2 Mar., 1889, 25 Stat. L., 857, c. 382; 1 Supp., 684. 10 Feb.,

1891, 26 Stat. L., 743, c. 128; 1 Supp., 891. 11 Feb., 1893,

27 Stat. L., 443, c. 83; 2 Supp., 80. 8 Feb., 1895, 28 Stat.

L., 643, c. 61; 2 Supp., 369. ]

* * *

35

Appendix E—Senate Report No. 388.

[At p. 47]

EXISTING LAW.

EIGHTH. Feb. 4, 1887. 24

CHAP. 104.—An act to regulate commerce. Stat., 279; 1 Supp.,

* * = * * * 529.

¢