This Court is without jurisdiction to review a judgment of a
state court under Rev.Stats., § 709, Jud.Code, § 237, upon the
ground that a federal right was denied when the claim of federal
right relied on was refused consideration in that court because it
was not asserted at a proper time or in a proper manner under the
established state system of pleading and practice.
The decision of the state court that a claim of federal right
was not so presented is binding on this Court when not rendered in
a spirit of evasion for the purpose of defeating the federal
right.
In accordance with the foregoing principles, a party desiring to
secure the benefits of the Federal Employers' Liability Act in an
action in a state court must claim them in apt time and in an
appropriate manner under the state rules of pleading and
practice.
Writ of error to review 100 S.C. 375 dismissed.
The case is stated in the opinion.
MR. JUSTICE Clarke delivered the opinion of the Court.
On December 10th, 1910, John J. Mims, a car inspector in the
employ of the plaintiff in error, when attempting to cross a track
to inspect a train of cars which had just
Page 242 U. S. 533
arrived, was run down and killed by a switching engine at a
public crossing in the City of Sumter, South Carolina.
In April following, this suit was commenced by the filing of a
complaint which charges actionable negligence and alleges that the
defendant owned and operated a line of railway described as wholly
within the State of South Carolina. There is nothing in the
complaint tending to state a cause of action under the federal law.
To this complaint the defendant filed an answer which is a specific
denial under the South Carolina Code of Civil Procedure and which
contains two separate defenses. The first defense admits that Mims
was killed at the time alleged, admits the paragraph alleging that
the defendant, at the time of the accident complained of, owned and
operated the line of railroad described as being wholly within the
State of South Carolina, and denies all the other allegations of
the complaint. The second defense is one of contributory
negligence.
Upon this complaint and answer, the case went to trial, and when
the testimony was all introduced, the trial court granted a
nonsuit, which was reversed by the supreme court of the state with
an order remanding the case for a new trial.
When the case was called for the second trial, the defendant
asked leave to amend its answer by pleading "gross and willful
contributory negligence" on the part of deceased, which was
granted, and the trial proceeded until plaintiff rested her
case.
Up to this time, no claim had been made by defendant and no
facts had been pleaded or evidence offered by either party from
which it could be inferred that the deceased at the time of his
death was engaged in interstate commerce, or that the Federal
Employers' Liability Act was in any manner applicable to the
case.
When the plaintiff rested her case on the second trial, the
defendant for the first time offered to introduce
Page 242 U. S. 534
testimony which it is claimed, if admitted, would have tended to
prove that the train which the deceased was in the act of
approaching to inspect when he was killed "was engaged in
interstate commerce and that the deceased was in this respect and
otherwise engaged in interstate commerce." The trial court rejected
this proffer of testimony on the ground that it came too late and
was not relevant to any issue tendered by the pleadings in the
case. No application was made for leave to amend the answer by
adding the claim under the federal law.
The practice differs in the courts of the various states as to
what testimony may be introduced under "a specific denial" such as
was filed in this case, and the Supreme Court of South Carolina,
while recognizing fully the ruling character of the Federal
Employers' Liability Act when the facts making it applicable are
properly pleaded, yet, upon full and obviously candid and competent
consideration, decided, as we have seen, that, under the settled
rules of pleading in that state, the evidence tendered was not
admissible. The essential justice of this decision, which is the
fundamental thing, commends it to our favor. The evidence admitted
in the case shows that the train which the deceased was about to
inspect when he was killed was a local freight train, with a run
habitually, and on the morning of the accident complained of,
wholly within the State of South Carolina. If the relation of the
deceased to the traffic which this intrastate train carried was
such as to give an interstate character to his service, that fact
must have been known to the defendant from the day the accident
occurred, and it could not possibly have been known to the
plaintiff, and therefore surprise and delay certainly, and possibly
defeat of plaintiff's claim under statutes of limitation, must have
been the inevitable result of permitting the introduction of the
proffered testimony late in the second trial, without the
federal
Page 242 U. S. 535
right claimed from it having been "specially set up and claimed"
in the answer of the defendant.
The plaintiff recovered a judgment, which the supreme court
affirmed.
This epitome of the action of the state court shows that the
claim under the federal statute now made was not presented until
after the plaintiff had rested in the second trial of the case
after it had been to the supreme court, and after the defendant,
upon the opening of this second trial, had amended its answer by
adding a third defense, without mentioning or in any manner
attempting to plead the federal claim. Even at this stage of the
trial, the assertion of the claim consisted only in a tender of
testimony, without any application to amend the answer.
To become the basis of a proceeding in error from this Court to
the supreme court of a state, "a right, privilege, or immunity"
claimed under a statute of the United States must be "especially
set up and claimed," and must be denied by the state court.
Rev.Stats. § 709; Judicial Code, § 237. This means that the claim
must be asserted at the proper time and in the proper manner by
pleading, motion, or other appropriate action under the state
system of pleading and practice,
Mutual Life Ins. Co. v.
McGrew, 188 U. S. 291,
188 U. S. 308,
and upon the question whether or not such a claim has been so
asserted, the decision of the state court is binding upon this
Court when it is clear, as it is in this case, that such decision
is not rendered in a spirit of evasion for the purpose of defeating
the claim of federal right.
Central Vermont Railway Co. v.
White, 238 U. S. 507;
John, Guardian v. Paullin, 231 U.
S. 583;
Erie R. Co. v. Purdy, 185 U.
S. 148;
Layton v. Missouri, 187 U.
S. 356.
The plaintiff in error mistakenly argues that, under recent
decisions of this Court, it is not necessary to claim the benefits
of the Federal Employers' Liability Act in a
Page 242 U. S. 536
pleading in a state court in order to obtain a review here of a
decision denying or refusing to consider such a claim. Reference to
the decisions relied upon shows that the federal right was in terms
claimed in the petition in
Missouri, Kansas & Texas Ry. Co.
v. Wulf, 226 U. S. 570, and
Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S.
42, and that, in
St. Louis, Iron Mountain &
Southern Ry. Co. v. Hesterly, 228 U.
S. 702, the decision proceeds upon the statement that,
since the supreme court of the state held the federal question
sufficiently raised and decided it, the objection that it was not
saved was not open in this Court. While it is true that the reports
show that, in
St. Louis, San Francisco & Texas Ry. Co. v.
Seale, 229 U. S. 156, and
in
Toledo, St. Louis & Western R. Co. v. Slavin,
236 U. S. 454, the
federal act was not specially referred to in the pleadings, yet
they were in such form that the trial court, either without
objection or over objection which the supreme court of the state
refused to sustain, admitted testimony making it necessary to apply
the federal act in deciding each case. This, of course, was
equivalent to holding that the pleadings in the trial court were in
a form to justify the introduction of testimony in support of the
federal claim under the system of practice and pleading prevailing
in the courts of the two states in which the cases were decided.
This brings these decisions clearly within the principle of the
conclusion we are announcing in this case.
While it is true that a substantive federal right or defense
duly asserted cannot be lessened or destroyed by a state rule of
practice, yet, the claim of the plaintiff in error to a federal
right not having been asserted at a time and in a manner calling
for the consideration of it by the state supreme court under its
established system of practice and pleading, the refusal of the
trial court and of the supreme court to admit the testimony
tendered in support of such claim is not a denial of a federal
right which
Page 242 U. S. 537
this Court can review,
Baldwin v. Kansas, 129 U. S.
52;
Oxley Stave Co. v. Butler County,
166 U. S. 648, and
therefore, for want of jurisdiction, the writ of error is
dismissed.