The provision in § 238 Judicial Code, providing for a direct
writ of error in any case in which the jurisdiction of the court is
in issue, refers to cases in which the power of the court, as a
federal court, to hear and determine the cause is in
Where that power is not in question, but only the sufficiency of
the evidence to establish an element of the plaintiff's asserted
cause of action, § 238 Judicial Code does not apply, and the writ
of error must be dismissed.
A decision of the district court of the United States granting a
compulsory nonsuit in an action brought under the Employers'
Liability Act because the evidence did not show that the plaintiff
was engaged in interstate commerce is subject to review in the
circuit court of appeals. A direct writ of error to this Court
under § 238 Judicial Code will not lie, as the jurisdiction of the
court as a federal court is not in issue.
The facts, which involve the construction and application of the
Employers' Liability Act, and the jurisdiction of this Court of a
direct appeal from the district court under the Judicial Code, are
stated in the opinion.
Page 233 U. S. 353
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action against a railway company to recover for
personal injuries. The right of action was predicated upon the
Federal Employers' Liability Act of April 22, 1908, 35 Stat. 65, c.
149, as amended April 5, 1910, 36 Stat. 291, c. 143, and it was
alleged that the injuries were sustained while the defendant was
engaged, and while the plaintiff was employed by it, in interstate
commerce. There was a plea of not guilty, and a trial resulted in a
judgment of compulsory nonsuit. The case is here upon a direct writ
of error based upon a certificate that the court's decision was
given upon a jurisdictional ground -- namely, that
"the evidence produced at the trial of the case did not disclose
that plaintiff at the time of the happening of the accident by
which he received the injuries complained of, was engaged in
Although counsel have presented the case as if it were properly
here, it is manifest that it is not. The clause in § 238 of the
Judicial Code providing for a direct writ of error "in any case in
which the jurisdiction of the court is in issue" refers, as we have
repeatedly held, to cases in which the power of the court, as a
federal court, to hear and determine the cause is in controversy.
Fore River Shipbuilding Co. v. Hagg, 219 U.
, 219 U. S. 178
United States v. Congress Construction Co., 222 U.
; Darnell v. Illinois Central Railroad
Co., 225 U. S. 243
such issue is here disclosed. The power of the court, as a federal
court, to hear and determine the case was not questioned. Nor did
the court hold that it was without jurisdiction
Page 233 U. S. 354
in that sense. On the contrary, it proceeded to a hearing and
decided that the plaintiff could not recover under the federal act
because one element of his asserted cause of action was without any
evidence to sustain it. Had the action been brought in a state
court, as it could have been, the same question would have arisen,
and had the evidence been similarly insufficient, a like decision
must have ensued. We say the action could have been brought in a
state court because § 6 of the federal act declares:
"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."
And we say the result must have been the same in a state court
upon similar evidence because the right of recovery given by the
act (§ 1) is restricted to injuries suffered while the employee is
employed in interstate commerce.
It follows that there was no basis for the direct writ of error.
If a review of the decision was desired, it should have been sought
in the circuit court of appeals.
Writ of error dismissed.