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to the judge; the seventh on the ground the case was not set for hearing and notice given to plaintiff's attorney; the eighth that the bond is not sufficient, and the ninth, tenth, eleventh, and twelith that diversity of citizenship of plaintiff's assignor is not shown.

After argument on the motion to remand, and before any ruling thereon could be made, the defendant filed its motion for leave to amend its petition by showing the citizenship of Collins, the assignor of plaintiff ; this last-mentioned motion being filed June 19th.

On May 7th the plaintiff applied for and had entered in the clerk's office of the state court a default judgment against the defendant, for want of a plea or demurrer.

Section 24 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat 1087) limits the jurisdiction of District Courts on choses in action to such cases as might be brought by the assignor. Section 28 of said Code limits cases to be removed to those of which the District Court are given original jurisdiction, and section 29 directs the method of procedure in removals, and requires the party to make and file a petition, duly verified, in the state court at any time before he is required to plead by the state law for the removal of said cause, and shall make and file therewith a bond with good and sufficient surety that he will within 30 days file a certified copy of the record and pay all costs that may be awarded by the District Court, if it shall be held that the suit was wrongfully or improperly removed. The section then requires that written notice of such petition and bond for removal shall be given the adverse party prior to filing same.

[1] It seems to me that the first question to be determined is whether the amendment asked can be allowed. This question seems to me to be settled in the affirmative by the decision of the United States Supreme Court in Kinney v. Columbia Savings & Loan Association, 191 U. S. 78, 24 Sup. Ct. 30, 48 L. Ed. 103. In that case the point was directly presented and ruled upon. The court in that case directly held that proceedings for removal were process and amendable. With the proposed amendment allowed, there is no question that the motion to remand in so far as citizenship is concerned is not well taken.

The motion to remand has other grounds, however.

[2] The plaintiff contends that the bond is insufficient, not no within the time required, or filed any bond; that the bond was not until May 19th, when it was approved by the state circuit judge: the bond was not accepted until after the plea day; that the per and bond were not accepted by the state judge; that the petition bond were not presented to the state judge; and that the periti not set down for a hearing before the state judge, and plaintint ; notice of such hearing.

These grounds may be considered together. In the first place, 4 filing of a duly verified petition for removal, stating the nece facts, together with a good and sufficient bond, conditioned as to by the section, with written notice to the plaintiff that the same be filed, automatically removed said cause to the United States

court

he section makes it the duty of the state court to accept said petition nd bond and proceed no further in such suit. It is too well setled by authority to need citation that even the refusal of the state court to grant the petition in a proper case made is of no moment. That this petition and bond was filed with the clerk of the state court on April 30th, the plea day being May 7th, appears to me too plain for serious contention. That the plaintiff's attorney was given notice and accepted same that such petition and bond would be filed April 30th admits of no dispute. Suppose the clerk did put his file mark on the bond and afterwards scratched it out, or suppose he had refused to file it; the rights of the defendant given by section 28 of the Judicial Code could not in any wise be prejudiced by the clerk's action. The section requires that the petition and sufficient bond be filed, and it is settled law that the clerk is the custodian of the records of the court, and a lodging with him for such purpose is a filing, whether he sees fit to place his file mark thereon or not. A litigant's rights cannot be injuriously affected by the failure or neglect of the clerk to do his duty. In the instant case the clerk seems to have done his duty by placing his file mark upon the bond.

Nor can the failure of the state judge to approve the bond and make the order of removal when presented to him on May 4th deprive the defendant of its right to remove. There can be no question that, had the attorneys for the defendant presented the papers there to the judge, instead of intrusting such duty to the clerk, no trouble would have been experienced.

This, it seems to me, disposes of these grounds of the motion to

remand.

[3] There is one other ground that should be noticed. It is that the bond is insufficient on its face: (a) It is executed by a foreign corporation in a foreign jurisdiction with a foreign surety company, and it is not made to appear that the seals affixed have been authorized; and (b) that it is not made to appear that the foreign surety company is authorized to do business in the state of Florida, so that the state judge was authorized to accept same without justification.

The certified copy of the bond contained in the record appears to be signed by the president of the defendant, and the surety company by its agent and attorney in fact, and the corporate seal attached. This, it seems to me, would be amply sufficient to authorize the state judge to accept the same, unless something was brought to his attention questioning the validity of said bond. Nothing of this kind seems to have been done, as his approval and acceptance appear under date of May 19th.

[4] It is also contended that it does not appear that the surety company was authorized to do business in Florida. The foreign corporation act of Florida has been construed by the state Supreme Court as making the contracts voidable and not void, and such act has been amended by the Legislature at its session in 1915. But in any event by the terms of the act the foreign corporation not complying with the act can take no advantage of such noncompliance, but is bound

by its contracts. Section 29 of the Judicial Code requires "surety," not “sureties.” This last ground, it seems to me, is not well taken.

The motion to amend will be granted, and the motion to remand will be denied.

It will be so ordered.

SULLIVAN V. ATLANTIC COAST LINE R. CO.

(District Court, S. D. Florida. August 17, 1917.). 1. MASTER AND SERVANT 258(9)—INJURIES TO SERVANT-DECLARATION

RIGHT OF RECOVERY.

Plaintiff's declaration alleged in the first count that defendant was engaged in the hazardous occupation of railroading; that plaintiff was a mechanic working in defendant's shops; that his duties required him to use steel chisels; that he delivered to defendant's blacksmith a chisel to be dressed and tempered; and that, though it was the duty of the blacksmith to do such work, he carelessly, negligently failed to properly tenper the chisel, so that upon being struck by a hammer, a piece of the cutting edge flew off and destroyed plaintiff's eye. Subsequent counts after allegations similar to those in the first count alleged negligence on the part of the blacksmith in dressing and tempering the chisel, and that the metal in the chisel was unfit and inadequate for the work required of plaintiff. Held, that the declaration, in view of all of the averments, did not show that the chisel furnished was defective, but established that the blacksmith's negligence in tempering it was the proximate cause of the

injury. 2. MASTER AND SERVANT 180(1)-FELLOW · SERVANTS-STATUTES-VON

STRUCTION--"HAZARDOUS."

Laws Florida 1913, c. 6521, § 1, defines hazardous occupations, among them railroading. Section 2, declares that persons mentioned in the first section shall be liable for injuries inflicted on their agents and employés caused by their negligence unless they, their agents and seryants, shall have exercised all reasonable care; while section 3 declares that such persons shall not be liable for injury done by the employé's consent, or caused by his own negligence, but if such persons or their agents be at fault as well as the employé, the injured employé may recover damages to the amount attributable to such persons. The section further declares that damages shall not be recovered where the injury occurs through the negligence of the injured employé and a fellow servant jointly engaged in performing the act causing the injury, and the employer is guilty of no negligence. A mechanic employed by a railroad company in its shops was injured by the splintering of a chisel which was improperly tempered by the railroad company's blacksmith. Held, that he could not recover, for his work was not extrahazardous within the act, but that recovery should be denied; the injury being the result of the negligence of a fellow servant.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Hazardous.) At Law. Action by James F. Sullivan against the Atlantic Coast Line Railroad Company, a corporation. On demurrer to the declaration and motion to compel plaintiff to separate causes of action in three counts of the declaration. Demurrer sustained.

A. H. & Roswell King, of Jacksonville, Fla., for plaintiff.
John L. Doggett, of Jacksonville, Fla., for defendant.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

of that the plaius occupationist count that the

L, District Judge. This cause comes on to be heard upon der to the declaration and motion to compel the plaintiff to sepane causes of action in counts 2, 3, and 4. e declaration charges in the first count that the defendant is en- in the hazardous occupation of railroading, and then proceeds ege that the plaintiff was a machinist engaged in working in the 5 of the defendant; that his duties required him to use steel chisthat he delivered to a blacksmith, an employé of defendant, a 1 to be dressed and tempered; that it was the duty of such black2 to do this work; that said blacksmith carelessly and negligently d to properly temper such chisel, so that upon being struck by a mer a piece of the cutting edge flew off and put out plaintiff's - that defendant failed to use proper precaution for the protec

of the plaintiff, and to furnish safe tools with which to work. The second count alleges all the allegations of the first count, and ges further negligence in that the blacksmith in repairing, dressing, cempering said chisel hammered or drew out same improperly, so that - cutting edge of said chisel was made or left with cracks, rifts, or ams running backward down the chisel, and thereby rendered liable

crack or shiver or break when the chisel was struck by the plainf.

The third count alleges all the allegations of the first count, and alges further that the metal in the chisel was unfit, improper, and inadquate for use in the way and for the work then and there required of ne plaintiff.

For a fourth count, after making the first count a part, it further aleges that the blacksmith improperly heated, dressed, and tempered the chisel, by reason of which, while plaintiff was using it as his duties required, said chisel broke, splintered, or shivered back from its cutting edge, and a fragment destroyed the sight of plaintiff's eye.

Chapter 6521 of the Laws of Florida, § 1, defines hazardous occupations, among them railroading. Section 2 provides that persons, etc., mentioned in section 1 shall be liable in damages for injuries inflicted upon their agents and employés caused by the negligence of such persons, etc., their agents and servants, unless such persons, etc., shall make it appear that they, their agents and servants, have exercised all ordinary and reasonable care and diligence; the presumption in all cases being against such persons, etc. Section 3 then provides that such persons, etc., shall not be liable for injuries where the same is done by the employé's consent or caused by his own negligence, but if the employé injured and the persons, etc., mentioned in the first section, or their agents or employés, are both at fault, the injured employé may recover, his damages to be decreased or increased in proportion to the amount of default attributable to both, provided that damages shall not be recovered where the injury occurs through the negligence of the injured employé and a fellow servant jointly engaged in performing the act causing the injury, and the employer is guilty of no negligence contributing to the injury. Section 4 does away with the doctrine of "assumption of risk,” in every case where the injury is attributable to the negligence of the employer, his agents or servants.

[1] The first count of the declaration is predicated on the duty of the defendant to temper and dress the chisel to be used by the plaintiff in his work, and that the blacksmith was employed by the defendant to do this work, and the work was so negligently done by the blacksmith that, upon the plaintiff using the chisel as he was required to do, a piece of the cutting edge flew off and destroyed the sight of his eye.

Then follows a general allegation that the defendant failed to use proper precaution for the protection of the plaintiff, and to furnish safe tools with which he was to do the work. This allegation follows the charge of negligence of the blacksmith and negatives the idea that the lack of precaution or the failure to furnish safe tools was the proximate cause of plaintiff's injury. There is no fact alleged in the declaration to show that the chisel furnished was defective, but, on the contrary, the direct allegation that the blacksmith's negligence in tempering it was the proximate cause of the injury is made. These allegations, taken with the further direct charge that the "steel chisels were required to be tempered and dressed by the defendant,” makes the general language above noted surplusage.

[2] The plaintiff, if he can recover upon the first count, must do so under and by virtue of chapter 6521, Laws of Florida 1913, the terms of which are set out above. Unless he falls within the terms of that act, the doctrine of injury through the negligence of a fellow servant would apply.

What I have said above in regard to the general charge of the failure of the defendant to furnish suitable tools to do the work applies equally to the charge in the third count that the metal in the chisel was unfit, improper, and inadequate for use in the way and for the work then and there required of the plaintiff. If the proximate cause of the injury was the negligence of the blacksmith, any other defect or negligence is of no moment.

The second and fourth counts charge negligence of the blacksmith more definitely, and in respect to the cause of action are the same as the first count, and governed by the same rule.

The Supreme Court of Florida, in G., F. & A. Ry. Co. v. King, 74 South. 475, in the majority opinion, construes this particular act. On page 477 of 74 South. the Court say:

"This statute was intended to define the liability of employers for injuries to employés engaged in the hazardous occupations therein stated."

Among these is “railroading." It then proceeds to define, on page 478 of 74 South. “railroading," as used in this statute, to mean “work upon a railroad,” and “the business of constructing railroads."

The same court, in Stearns & Culver Lumber Co. v. Fowler, 58 Fla. 367, 50 South. 682, discussing the power of the Legislature, say:

"The legislature may exercise a wide lawmaking discretion as to regulating employments, and the liabilities and remedies incident thereto, when the classifications adopted for legislative regulation or change are not purely arbitrary, and are made with reference to real and practical differences in employments, and not merely to different employers.'

In the instant case the plaintiff was a machinist in the employ of the defendant in its machine shops, either to "work upon” or “the

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