215 U.S. 308 (1909), 41, Illinois Central Railroad Company v. Sheegog

Docket Nº:No. 41
Citation:215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208
Party Name:Illinois Central Railroad Company v. Sheegog
Case Date:December 20, 1909
Court:United States Supreme Court

Page 308

215 U.S. 308 (1909)

30 S.Ct. 101, 54 L.Ed. 208

Illinois Central Railroad Company



No. 41

United States Supreme Court

December 20, 1909

Argued December 12, 1909




Where the joinder of the resident and the nonresident defendants prevents removal to the federal court, the fact that, on the trial, the jury finds against the nonresident defendant only has no bearing on the question of removal if the joinder was not fraudulent.

Allegations of fact, so far as material in a petition to remove, if controverted, must be tried in the federal court, and therefore must be taken to be true when the state court fails to consider them.

A plaintiff may sue the tortfeasors jointly if he sees fit, regardless of motive, and an allegation that resident and nonresident tortfeasors are sued for the purpose of preventing removal to the federal court is not a sufficient allegation that the joinder was fraudulent.

A lessor railroad company remains responsible, so far as its duty to the public is concerned, notwithstanding it may lease its road, unless relieved by a statute of the state.

Whether defendants can be sued jointly as tortfeasors is for the state court to decide, and so held that, where the state court decides that a lessor road in that state is responsible for keeping its roadbed in order, the joinder of both lessor and lessee road in a suit for damages caused by imperfect roadbed and management is not fraudulent, and the lessee road, although nonresident, cannot remove if the lessor road is resident.

126 Ky. 252 affirmed.

The facts are stated in the opinion.

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HOLMES, J., lead opinion

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a writ of error to reverse a judgment rendered by the Court of Appeals of Kentucky in favor of the defendant in error, notwithstanding a petition and bond for removal to the circuit court of the United States. 126 Ky. 252.

The defendant in error brought this action for causing the death of his intestate, John E. Sheegog, by the throwing off the track of a railroad train upon which the deceased was employed as an engineer. The defendants were the conductor of the train, the Illinois Central Railroad Company, which was operating the railroad and owned the train, and the Chicago, St. Louis & New Orleans Railroad Company, which owned the road and tracks where the accident happened, but which had let the same to the first-mentioned road. It was alleged that, through the negligence of both companies, the roadbed, track, etc., were in an improper condition; that, through the negligence of the Illinois Central, the engine and cars were in an improper condition, and that the death was due to these causes acting jointly, the negligence of the Illinois Central in permitting its engine, cars, and road to be operated while in such condition, and the negligence of the conductor in ordering and directing the management of the train.

In due season, the Illinois Central Railroad Company, being an Illinois corporation, filed its petition to remove. The difficulty in its way was that the other two defendants were citizens and residents of Kentucky, to which state the plaintiff also belonged. To meet this, the petition alleged that the plaintiff had joined these parties as defendants solely for the purpose of preventing the removal. It admitted the lease, and averred that the Illinois Central Company [30 S.Ct. 102] operated the road exclusively, and alone employed the deceased. It went on to allege that the charge of joint negligence against the lessor and lessee in causing the wreck, as stated, was made only for the above purpose, and was fraudulent and knowingly false.

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The question is whether these allegations were sufficient to entitle the petitioner to have its suit tried in the federal court. It may be mentioned here that the jury found for the other two defendants and against the Illinois Central Railroad Company, but that fact has no bearing upon the case. Whitcomb v. Smithson, 175 U.S. 635, 637.

Of course, if it appears that the joinder was fraudulent, as alleged, it will not be allowed to prevent the removal. Wecker v. National Enameling & Stamping Co., 204 U.S. 176. And further, there is no doubt that the allegations of fact, so far as material, in a petition to remove, if controverted, must be tried in the court of the United States, and therefore must be taken to be true when they fail to be considered in the state courts. Crehore v. Ohio & Mississippi Ry. Co., 131 U.S. 240, 244; Chesapeake & Ohio Ry. Co. v. McCabe, 213 U.S. 207. On the other hand, the mere epithet "fraudulent" in a petition does not end the matter. In the case of a tort which gives rise to a joint and several liability, the plaintiff has an absolute right to elect, and to sue the tortfeasors jointly if he sees fit, no matter what his motive, and therefore an allegation that the joinder of one of the defendants was fraudulent, without other ground for the charge than that its only purpose was to prevent removal, would be bad on its face. Alabama Great Southern Ry. Co. v. Thompson, 200 U.S. 206; Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Bohon, 200 U.S. 221. If the legal effect of the declaration in this case is that the Illinois Central Railroad Company was guilty of certain acts and omissions by reason of which a joint liability was imposed upon it and its lessor, the joinder could not be fraudulent in a legal sense on any ground except that the charge against the alleged immediate wrongdoer, the Illinois Central Railroad itself, was fraudulent and false.

We assume, for the purposes of what we have to say, that the allegations concerning the lessor state merely a conclusion of law from the acts and omissions charged against its lessee. Or, if they be taken to be allegations of fact, we

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assume, again merely for the purposes of decision, that they are effectively traversed by the petition to remove. The Kentucky Court of Appeals appears to us to have discussed the case on this footing. Whether it did or not, the question whether a joint liability of lessor and lessee would arise from the acts and omissions of the Illinois Central Railroad Company alone was a question of Kentucky law for it to decide, and it appears to us to have decided it.

We should observe in the first place that the cause of action alleged is not helped, but rather hindered, by the allegation that the deceased was an employee of the Illinois Central Road. The case did not stand on the breach of any duty owed peculiarly to employees, and, on the other hand, was encumbered with the fact that a part of the negligence charged was that of a fellow servant. The plaintiff recovered for a breach of a duty to the public which, at best, was not released or limited by his intestate's having been in the company's service. Now, whether we agree with it or not, the doctrine is familiar that, in the absence of statute, a railroad company cannot get rid of the liabilities attached to the exercise of its franchise by making a lease. Whatever may be the law as to purely contract relations, to some extent, at least, the duties of the lessor to the public, including that part of the public that travels on the railroad, are held to remain unchanged. In this case, the Court of Appeals, after noting that it does not appear that the lessor was relieved by statute, quotes an earlier Kentucky decision which seemingly adopted the following language of a commentator:

If it be true, as the decision with substantial unanimity admit, that the lessor railway remains liable for the discharge of its duties to the public unless expressly exempted therefrom by statute, it seems difficult to conceive its absence of liability in any event, except, perhaps, where the plaintiff is suing upon an express contract made with him by the lessee corporation.

McCabe v. Maysville & Big Sandy R. Co., 112 Ky. 861, 875.

The court, however, then goes on to refer to a distinction

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taken in a later Kentucky case between torts arising from negligent operation and those resulting from the omission of such duties as the proper construction and maintenance of the road, Swice v. Maysville & Big Sandy R. Co., 116 Ky. 253, and quotes with seeming approval decisions in other states limiting the liability of the lessor to the latter class. But it then proceeds to show that the recovery in this case is upon a breach of a duty to the public, and that, according to the declaration and the verdict, the injury was due, in part at least, to the...

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