AMERICAN SUGAR-REFINING CO. v. JOHNSON, 60 F. 503

PARDEE, Circuit Judge (after stating the facts). The record shows that the question of jurisdiction of the circuit court was not raised in the court below, and of course the jurisdiction is not certified as involved in the case. The first assignment of error raises the question in this court that the jurisdiction of the circuit court does not appear from the face of the record. The ap-pellee, relying upon the textual provisions of

section 5 of the judiciary act of 1891, which is to the effect that appeals or writs of error may be taken from the district courts or existing circuit courts direct to the supreme court in any case in which the jurisdiction of the court is in issue, and upon the terms of the sixth section, which restrict the jurisdiction of the circuit courts of appeal to cases other than those provided for in the fifth section, contends that this assignment of error cannot be considered in this court. “The ralo, springing from the ñatee and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in tlie exercise of its appellate power, that of all oilier courts of the United States, in all eases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act.

On every writ of error or appeal 1he first and fundamental question is that of jurisdiction, first of this court, and then of the court from which-the record comes. -This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the rel'tion of the parties to it.” Railway Co. v. Swan, 111 U. S. 379-389, 4 Sup. Ct. 510. In the case of McLish v.

Roff the supreme court of the United States, in construing the fifth and sixth sections of the judiciary-act of. 1891, among other things, said: ‘¡The true purpose of the act, as gathered from its context, is that the writ of error or the appeal may be taken only after final judgment, except ■ in tlie cases specified in

section 7 of the act. When th.it judgment is rendered, tlie party against whom it is rendered must-elect whether he will take his writ of error or appeal to the supreme court upon the question of jurisdiction alone, or to the circuit court of appeals upon tlie whole cace. If the latter, then the circuit court of appeals may, if it deem proper, certify the question of jurisdiction to this court.” 141 U. S. 661-668, 12 Sup. Ct. 118. Relying upon the construction given in McLish v.

Roff, the.practice of this court has been, where an appeal or writ of error has been taken in the whole case, and the question of jurisdiction in the court below has been raised, to pass upon the question of jurisdiction as upon any other issue raised in the case. And accordingly, in Telephone Co. v. Robinson, 2 U. S. App. 148, 1 C. C. A. 91, 48 Fed. 769, which was a case in which the jurisdiction of the circuit court was not apparent of record, this court held that the jurisdiction of the circuit court must appear affirmatively in the record, citing Insurance Co. v. Rhoads, 119 U. S. 237, 7 Sup.

Ct. 193; Timmons v. Land Co., 139 U. S. 378, 11 Sup. Ct. 585; and also held that, “where the jurisdiction of the circuit court does not appear in the record, the appellate court will, on its own motion, notice the defect, and make disposition of the case accordingly;” and we then reversed the decree of tlie circuit court remanding the cause to the court below with instructions to remand to the state court from which it was removed. And in Railway Co. v. Rogers, 6 C. C. A. 403, 57 Fed. 378, and in Tinsley v. Hoot, 2 U. S. App. 548, 3 C. C. A. 612, 53 Fed. 682, this court followed the same practice.

In the case of Carey v. Railway Co. (recently decided, but not yet officially reported) 14 Sup.

Ct. 63, the supreme court say: “The judiciary act of March 3, 1891, in distributing the appellate jurisdiction of .tlie national judicial system between the supreme court and the circuit courts of appeals therein established, designated the classes of cases in respect of which each of these courts was to have final jurisdiction (the judgments of the latter being subject to the supervisory power of til's court through the writ of certiorari as provided), and the act has uniform y been so construed and applied as to promote its general and manifest purpose of lessening the burden of litigation in this court.

The fifth

section of tlie act specifies six classes of cases in which appeals or writs of error nny be taken directly to this court, of which we are only concerned with the first and fourth, which include those eases ‘in which the jurisdiction of the court is in issue.

In such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision,’ and ‘any case that involves the construction or application of the constitution of the United States.’ In order to bring this appeal within the first of these classes, the jurisdiction of the circuit court must have been in issue in this case, and, as appeals or writs of error lie here only from final judgments or decrees, must have been decided against appellants; and the question of jurisdiction must have been certified.

We do not now say that the absence ¿f a formal certificate would be fatal, but it is required by the statute, and its absence might have controlling weight where the alleged issue is not distinctly defined.” Heading the fifth and sixth sections of the act of 1891 in the light of McLish v. Rolf and Carey v.

Railway Co., and the former practice of this court, we consider that the exclusive jurisdiction of the supreme court, in any case where the jurisdiction of the court is in issue, only attaches when the appeal or writ of error is taken direct to that court, and that, when not so taken, but the appeal or writ of error is taken on the whole case to the circuit court of appeals, that court is vested with jurisdiction to pass on all the issues involved.

As to certifying a jurisdictional question to the supreme court in such cases, that is only to be done when the instruction of that court is desired for the proper decision of the case. Watch Co. v. Robbins, 148 U. S. 266, 13 Sup. Ct. 594. We consider, therefore, that we have full jurisdiction to pass upon the.first assignment of error in this case. The right of a corporation to sue and be sued in the circuit courts of the United States, irrespective of the citizenship of the individual stockholders, was at one time much questioned, but was finally settled by the supreme court in favor of the right.

Railway Co. v. Letson, 2 How. 497; Marshall v. Railway Co., 10 How. 314; Railroad Co. v. Wheeler, 1 Black, 286. See, also, Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935. In Railroad Co. v. Wheeler, supra, the following propositions are declared: ‘‘

(1) A corporation exists only in contemplation of law, and by force of law, and can have no legal existence beyond the bounds of the sovereignty by which it is created. It must dwell in the place of its creation.

(2) A corporation is not a citizen within the meaning of the constitution of the United States, and cannot maintain a suit in a court of the United States against the citizen of a different state from that by which it was chartered, unless the persons who compose the corporate body are all citizens of that state. (

S) In sueli ease they may sue by tlieir corporate name, averring the citizenship of all the members, and such a suit would be regarded as the joint suit of individual persons, united together in the corporate body and acting under the name conferred upon them for the more convenient transaction of business, and consequently entitled to maintain a suit in the courts of the United States against a citizen of another state.

(4) Where a corporation is created by the laws of a state, the legal presumption is that its members are citizens of the state in which alone the corporate body has a legal existence.

(5) A suit by or against a corporation in its corporate name must be presumed to be a suit by or against citizens of the state which created the corporate body, and no averment or evidence to the contrary Is admissible for the purpose of withdrawing the suit from the jurisdiction of a court of the United States.” To apply these propositions in a suit brought in a circuit court of the United States for or against a corporation, it is all important to know under the laws of what state the corporate body was created. In Insurance Co. v.

French, 18 How. 465, the supreme court said: “In the declaration the plaintiffs are averred to be citizens of Ohio, and they ‘complain of the Lafayette Insurance Company, a citizen of the state of Indiana.’ This averment is not sufficient to show jurisdiction. It does not appear that the Lafayette Insurance Company is a corporation, or, if it be such, by the law of what state it was created.

The averment that the company is a citizen of the state of Indiana can have no sensiblo meaning --attached to it.’ This ■ court does not hold that either a voluntary association of persons or an association into a hody politic created hy law is a citizen of a state, within the meaning of the constitution; and therefore, if the .defective averment in the declaration had not been otherwise supplied, the suit must have been dismissed.” A similar question was again before the supreme court in Muller v. Dows, 94 U. S. 444, 445, and the court said: - “The decree made below is assailed here for several reasons.

The first is that the court had no jurisdiction of the suit, in consequence of the want of proi>cr and necessary citizenship of the parties. This objection was not taken in the circuit court, but it is of such a nature that, if well founded, it must be regarded as fatal to the decree. The bill avers that Dows and Winston, two of the complainants, are citizens and residents of the state of Kew York, and that Burnes, the other complainant, is a citizen and resident of the state of Missouri.

The two original defendants, the Chicago and Southwestern Railway Company and the Chicago, Rock Island and Pacific Railroad Company, are averred to be citizens of the state of Iowa. Were this all that the pleadings exhibit of the citizenship of the parties, it would not be enough to give the circuit court jurisdiction of the case. In Insurance Co. v. French, 18 How. 404, .a similar averment was held to be insufficient, because it did not appear from it that the Lafayette Insurance Company was a corporation, or, if it was, that it did not appear by the law of what state it was made a corporation.

It was therefore ruled that, if the defective averment had not been otherwise supplied, the suit must have been dismissed. A corporation itself can be a citizen of no state in the sense in which the word ‘citizen’ is used in the constitution of the United States. A suit may be brought in the federal courts by or against a corporation, but in such a case it is regarded as a suit brought by or against the stockholders of the corporation; and for the purposes of jurisdiction it is conclusively presumed that all the stockholders are citizens of the state which, by its laws, created the corporation.

It is therefore necessary that it be made to appear that the artificial being was brought into existence by the law of some state other than that of which the adverse party is a citizen. Such an averment is usually made in the introduction or in the stating part of the bill. It is always there made if the bill is formally drafted. But if made anywhere in the pleadings it is sufficient. In Insurance Co. v.

French, supra, the defective averment' of citizenship was held to have been supplied by the plaintiff’s replication to the plea., which alleged that the defendants were a corporation created under the laws of Indiana, having its principal place of business in that' state.

And in the present case we think the averment in the introduction of the bill that the two defendant corporations were citizens of Iowa, which, if standing alone, would be insufficient to show jurisdiction in the federal court, has been supplemented by other averments which satisfactorily show that the court had jurisdiction of the case.” In Pennsylvania v. Quicksilver Min.

Co., 10 Wall. 553, tbe jurisdictional averment was: “Tbe commonwealth, of Pennsylvania, by her attorney general, complains of the Quicksilver Mining Company, a body politic in the law of, and doing business in, the state of California.” In disposing of the matter on a motion to dismiss, Mr.

Justice Nelson, for the supreme court, said: “And the question in this case is whether it is sufficiently disclosed in the declaration that this suit is brought against a citizen of California; and this turns upon another question, and that is whether the averment there imports that the defendant is a corporation created by the laws of that state; for, unless it is, it does not partake of the character of a citizen within the meaning of the cases on this subject. The court is of opinion that this averment is insufficient to establish that the defendant is a California corporation.

It may mean that the defendant is a corporation doing business in ' that state by its agent, but not that it had been incorporated by the laws of the state.

It would have been very easy to have made the fact clear by averment, and, being a jurisdictional fact, it should not have been left in doubt.” From these considerations and authorities 'we conclude that in a suit for or against a corporation in the courts of the United States the matter of jurisdiction may be shortly stated as follows: That, in order to hold that a private corporation is a citizen of a particular state, within the meaning of the word “citizen” as used in the judicial acts of the United States, and thereby conclusively presume that all of the shareholders of such corporation are citizens of the particular state, it must affirmatively appear that (he corporation was created under the laws of such state; and it would seem that an averment that the body suing or sued is a corporation or a citizen or both of a particular state is insufficient.

In the case under consideration the jurisdictional averment is that “the American Sugar-Refining Company, a corporation domiciled and doing business in this city [New Orleans], and a citizen of New Jersey, and found within the eastern district of Louisiana, of which George S. Eastwick is manager, and authorized to accept service of legal process, is indebted,” etc. This averment is doubtful and contradictory. A corporation cannot have two domiciles. Bridge Co. v. Woolley, 78 Ky. 523; Bank v. Earle, 13 Pet. 519, 520.

The domicile, the residence, and the citizenship of a corporate body are all necessarily within the state which created and organized it. It must dwell in the place of its creation, and cannot migrate to another sovereignty. Bank v. Earle, 13 Pet. 519, 520; Railroad Co. v. Koontz, 104 U. S. 5-12; Ex parte Schollenberger, 96 U. S. 369-377. We have already shown that ir. can only be a citizen of (he state which creates it.

If force and effect is given to the jurisdictional averment in this case, we are bound to conclude that the American Sugar-Refining Company, being domiciled in Louisiana, is a Louisiana corporation, and that, the same company, being a citizen of New Jersey, is a New Jersey corporation.

In this state of the record, it cannot be said that, the assertion that “the American Sugar-Refining Company is a. citizen of New Jersey” is the controlling averment, and that we can therefrom conclusively presume that all the shareholders of said company are citizens of the state of New Jersey, however much we may be inclined to consider the case of Insurance Co. v. French, supra, and Muller v.

Dows, supra, as inapplicable; and agree with the argument of learned counsel for appellee that, “if it is a conclusive presumption of law that a corporation is a citizen of a state by whose laws it is created, is it not equally a conclusive presumption of law that a. corporation which is a citizen of a state named was created such by the laws of the state?” Our conclusion is that the first assignment of error is well taken.

This conclusion is sufficient to reverse the case, but, as the error in question may be cured by amendment in the court below, and the case retried, we proceed to consider the other assignments of error. The second and third can be considered together.

They "are, in substance, that the original petition and the supplemental and amended petition, taken together, as they must be, because the amended petition reiterates all the allegations of the original petition except as the same are altered by the amended petition, are too vague, inconsistent, and contradictory in their allegations to •demand an answer, or enable the defendant to safely answer the same, and go to trial thereunder.

It cannot be denied that the allegations of the original and amended petitions, taken together, are vague, inconsistent, and conflicting, and that this criticism will apply to the amended petition considered by itself. It is easy ■ to gather from the petitions that, in the causes which resulted in and produced the death complained of, the negligence of a fellow servant intervened.

That being the case, the responsibility of the company for the acts complained of, under the matter as generally stated in the petitions, could only result from the failure on the part of the company either to furnish suitable appliances and machinery, or to neglect and fail to use due diligence and care in the employment of the servants through whose negligence tlie death resulted. A critical examination of the original and amended petitions shows that neither one of these acts on the part of the company is sufficiently charged to put the defendant company on its defense.

Under the practice in Louisiana the defendant is entitled to a clear and concise statement of the causes of action. Code Pr. art. 172. The fourth assignment of error presents the question whether the right of action for damages sustained by the death of Otto Johnson survives in favor of the p’aintiff, widow of said Otto Johnson, and tutrix of the minor children of the said Otto Johnson. The articles of the Civil Code necessary to consider are the following: '“Art. 2315 (2204).

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action shall survive, in ease of death, in favor of the minor children cr widow of the deceased, or either of them, and in default of tlie.'e, in favor of the father or mother, or either of them, for the space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or elrld, or husband or wife, as the case may be. Art. 2316.

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence or his want of skill. Art. 2317. We are responsible not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable. ⅜ * * Art. 2320. Masters and employers are responsible for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” The contention of the plaintiff in error is that

article 2315, as amended, refers only to acts of commission, and that, under the proper construction of that

article and the succeeding articles, provision is made for no survivor of action in case of death, except where death resulted from acts of commission; and the learned counsel cites the well-known state of both the common and civil law with regard to the survival of actions, and the cases of Asher v. Cabell, 50 Fed. 818, and Hendrick v. Walton, 69 Tex. 192, 6 S. W. 749, as showing that the right of action for death is not to be extended beyond the line drawn by the lawgiver; and he further cites Wood v. Stokes, 13 La. Ann. 143, to show that an amendment of one

article of the Civil Code of Louisiana, when it contains no repealing clause, does not affect any other

article not irreconcilable with such amendment; and thereupon contends that, as there is no repealing clause in the several acts amending

article 3315 of the Code, said amendments introduce a limited survivorship as to the one

article of the Code only. Conceding the correctness of the authorities cited, still we do not concur in the conclusion reached by the learned counsel.

Article 2315 and the other articles quoted from the Code of Louisiana are found in a

chapter of the Code entitled “Of Offences and Quasi Offences.” The first article (2315) lays down broadly the general proposition with regard to liabilities in cases of offenses and quasi offenses.' The remaining articles are evidently explanatory and restrictive of the first. To give to tne first

article the narrow construction that it applies only to positive acts of commission is unwarranted by the terms of the article: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” To warrant the construction claimed, it should read in phraseology similar to the next article: “Every person is responsible for the damage he occasions by Ms wrongful acts.” The application of

article 2315 to acts of omission as well as to acts of commission has been frequent in the courts of Louisiana, and it has never been disputed that when death resulted from such acts of omission, or through the negligence of servants and employes for which the master was responsible, that the cause of action survived as permitted in said article. See Earhart v. Railroad Co., 17 La. Ann. 243; Frank v. Railroad Co., 20 La. Ann. 26; McCubbin v. Hastings, 27 La. Ann. 713; Vredenburg v. Behan, 33 La. Ann. 643; Walton v. Booth, 34 La. Ann. 913; Curley v. Railroad Co., 40 La. Ann. 811, 6 South. 103; Cline v.

Railroad Co., 41 La. Ann. 1031, 6 South. 851; Id., 43 La. Ann. 327, 9 South. 122; Clements v. Electric Light Co., 44 La. Ann. 692, 11 South. 51; Myhan v. Electric Light Co., 41 La. Ann. 964, 6 South. 799; Clairain v. Telegraph Co., 40 La. Ann. 178, 3 South. 625. We are not disposed to indorse an innovation on the narrow grounds suggested.

The fifth assignment of error is that the lower court erred in overruling the fourth exception to the plaintiff’s petition, to the effect that the said amended and supplemental petition alleges that the said Otto Johnson was injured and killed in the course of an employment, the risk of which he assumed, and by his own carelessness, or by the act of a fellow servant, the risks of whose carelessness he, the said Johnson, also assumed, or both, and that the said petition states no cause of action against this defendant.

This assignment of error is not well taken, because the said amended and supplemental petition does not allege directly or by permissible construction that ’ the said Otto Johnson was injured and killed in the course of an employment, the risk of which he assumed, and by his own carelessness or by the act of a fellow servant, the risks of whose carelessness he, the said Johnson, also assumed. As we have said before, the petition is vague, uncertain, and inconsistent, and no such clear-cut allegations as claimed by plaintiff can be found therein.

The judgment of the lower court is reversed, and the cause is remanded to said court to be therein further proceeded with, allowing amendments and awarding a new trial, as law and justice may require; appellee to pay the costs of appeal. 1 C. C. A. 693.