Erie R. v. Kennedy

Citations

• 191 F. 332
• 112 C.C.A. 76
• 1911 U.S. App. LEXIS 4947

Syllabus

<p>1. Courts (§ 276*) — Jurisdiction of Federal Courts — District of Suit-Waiver of Objection. •</p> <p>Where, in an action in a federal court by an employé against a railroad company for a personal injury, although the petition did not expressly declare upon the federal employer’s liability statute, the court submitted the case to the jury upon the theory that it was based on that statute, the failure of defendant at any time to raise the objection that it was not suable under such statute in that district was a waiver of such objection.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. § 276.*</p> <p>Waiver of right as to district in which suit may be brought, see notes to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192; McPhee & McGinnity Co. v. Union Pac. R. Co., 87 C. C. A. 634.]</p> <p>2. Pleading (§-388*) — Variance.</p> <p>A variance between pleadings and proof is not material, unless of a character to mislead the opposite party.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1305-1308; Dec. Dig. § 388.*]</p> <p>3. Apfeal and Error (§ 1066*) — Review—Harmless Error — Instructions.</p> <p>Instructions in an action by a railroad employé for a personal injury, given on the theory that the action was based on the federal employer’s liability statute, even if erroneous, because not warranted by plaintiff’s pleading, were not prejudicial to defendant, unless the rules of liability under such statute were more burdensome than those under the alternative state statute.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p> <p>4. Appeal and Error (§ 273*) — Exceptions to Instructions — Necessity for Specific Exceptions.</p> <p>A general exception to a charge, on the ground that it erroneously submitted the case under a federal statute, which was not applicable to the case made by the pleadings, is not sufficient to sustain assignments of error based on specific differences betw