304 U.S. 64 (1938), 367, Erie Railroad Co. v. Tompkins

Docket NºNo. 367
Citation304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188
Party NameErie Railroad Co. v. Tompkins
Case DateApril 25, 1938
CourtUnited States Supreme Court

Page 64

304 U.S. 64 (1938)

58 S.Ct. 817, 82 L.Ed. 1188

Erie Railroad Co.

v.

Tompkins

No. 367

United States Supreme Court

April 25, 1938

Argued January 31, 1938

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. The liability of a railroad company for injury caused by negligent operation of its train to a pedestrian on a much-used, beaten path on its right-of-way along and near the rails depends, in the absence of a federal or state statute, upon the unwritten law of the State where the accident occurred. Pp. 71 et seq.

2. A federal court exercising jurisdiction over such a case on the ground of diversity of citizenship, is not free to treat this question as one of so-called "general law," but must apply the state law as declared by the highest state court. Swift v. Tyson, 16 Pet. 1, overruled. Id.

3. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," whether they be commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. P. 78.

4. In disapproving the doctrine of Swift v. Tyson, the Court does not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. It merely declares that, by applying the doctrine of that case, rights which are reserved by the Constitution to the several States have been invaded. P. 79.

90 F.2d 603, reversed.

Page 65

CERTIORARI, 302 U.S. 671, to review the affirmance of a judgment recovered against the railroad company in an action for personal injuries. The accident was in Pennsylvania. The action was in New York, jurisdiction being based on diversity of citizenship

Page 69

BRANDEIS, J., lead opinion

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

The question for decision is whether the oft-challenged doctrine of Swift v. Tyson1 shall now be disapproved.

Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a commonly used beaten footpath which ran for a short distance alongside the tracks, and that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim, he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. It denied liability, and the case was tried by a jury.

Page 70

The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that, under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way -- that is, a longitudinal pathway, as distinguished from a crossing -- are to be deemed trespassers, and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence unless it be wanton or willful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts, and contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law.

The trial judge refused to rule that the applicable law precluded recovery. The jury brought in a verdict of $30,000, and the judgment entered thereon was affirmed by the Circuit Court of Appeals, which held, 90 F.2d 603, 604, that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law, and that,

upon questions of general law, the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is, and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. . . . It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train.

Page 71

The Erie had contended that application of the Pennsylvania rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U.S.C. § 725, which provides:

The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.

Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari.

First. Swift v. Tyson, 16 Pet. 1, 18, held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by its highest court; that they are free to exercise an independent judgment as to what the common law of the State is -- or should be, and that, as there stated by Mr. Justice Story:

the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was intended to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies what is the true exposition of the contract or

Page 72

instrument, or what is the just rule furnished by the principles of commercial law to govern the case.

The Court, in applying the rule of § 34 to equity cases, in Mason v. United States, 260 U.S. 545, 559, said: "The statute, however, is merely declarative of the rule which would exist in the absence of the statute."2 The federal courts assumed, in the broad field of "general law," the power to declare rules of decision which Congress was confessedly without power to enact as statutes. Doubt was repeatedly expressed as to the correctness of the construction given § 34,3 and as to the soundness of the rule which it introduced.4 But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to it by the Court was erroneous, and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling,

Page 73

the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written.5

Criticism of the doctrine became widespread after the decision of Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518.6 There, Brown and Yellow, a Kentucky corporation owned by Kentuckians, and the Louisville and Nashville Railroad, also a Kentucky corporation, wished that the former should have the exclusive privilege of soliciting passenger and baggage transportation at the Bowling Green, Kentucky, railroad station, and that the Black and White, a competing Kentucky corporation, should be prevented from interfering with that privilege. Knowing that such a contract would be void under the common law of Kentucky, it was arranged that the Brown and Yellow reincorporate under the law of Tennessee, and that the contract with the railroad should be executed there. The suit was then brought by the Tennessee corporation in the federal court for western Kentucky to enjoin competition by the Black and White; an injunction issued by the District Court

Page 74

was sustained by the Court of Appeals, and this Court, citing many decisions in which the doctrine of Swift v. Tyson had been applied, affirmed the decree.

Second. Experience in applying the doctrine of Swift v. Tyson had revealed it defects, political and social, and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity;7 and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties.8

On the other hand, the mischievous results of the doctrine had become apparent. Diversity of...

To continue reading

Request your trial
18098 practice notes
  • 124 B.R. 488 (Bkrtcy.W.D.Tex. 1991), 90-50257, In re Fairchild Aircraft Corp.
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • January 22, 1991
    ...aspects of Texas law, not to its procedural aspects. 2 MOORE'S FED.PRACT. ¶ 1.04[4] (Matthew Bender 1989); see Erie v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 822-23, 82 L.Ed. 1188 (1938). Texas statutory and case law authority mandating that certain procedural steps constitute the excl......
  • 134 B.R. 81 (Bkrtcy.E.D.N.Y. 1991), 186-0067, In re Persky
    • United States
    • Federal Cases United States Bankruptcy Courts Second Circuit
    • December 3, 1991
    ...under all of the authorities. Butner v. [United States], 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), Erie Railroad etc. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938), In re Kravitz, 278 F.2d 820 (3d Cir.1960), and many others. In re Bundy, 53 B.R. 582, ......
  • 211 B.R. 813 (W.D.Pa. 1997), 91-20903, In re Papercraft Corp.
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • August 7, 1997
    ...Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 2067, 68 L.Ed.2d 500 (1981) (quoting Erie R. Co. v.Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938)). "Although it is much too late to deny that there is a significant body of federal law that has be......
  • 218 B.R. 656 (D.R.I. 1998), 96, Zahn v. Yucaipa Capital Fund
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Rhode Island
    • February 24, 1998
    ...of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 464-65, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Moores v. Greenberg, 834 F.2d 1105, 1107 (1st Cir.1987). Specifically, the Court must determine whether th......
  • Request a trial to view additional results
17666 cases
  • 124 B.R. 488 (Bkrtcy.W.D.Tex. 1991), 90-50257, In re Fairchild Aircraft Corp.
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • January 22, 1991
    ...aspects of Texas law, not to its procedural aspects. 2 MOORE'S FED.PRACT. ¶ 1.04[4] (Matthew Bender 1989); see Erie v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 822-23, 82 L.Ed. 1188 (1938). Texas statutory and case law authority mandating that certain procedural steps constitute the excl......
  • 134 B.R. 81 (Bkrtcy.E.D.N.Y. 1991), 186-0067, In re Persky
    • United States
    • Federal Cases United States Bankruptcy Courts Second Circuit
    • December 3, 1991
    ...under all of the authorities. Butner v. [United States], 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), Erie Railroad etc. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938), In re Kravitz, 278 F.2d 820 (3d Cir.1960), and many others. In re Bundy, 53 B.R. 582, ......
  • 211 B.R. 813 (W.D.Pa. 1997), 91-20903, In re Papercraft Corp.
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • August 7, 1997
    ...Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 2067, 68 L.Ed.2d 500 (1981) (quoting Erie R. Co. v.Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938)). "Although it is much too late to deny that there is a significant body of federal law that has be......
  • 218 B.R. 656 (D.R.I. 1998), 96, Zahn v. Yucaipa Capital Fund
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Rhode Island
    • February 24, 1998
    ...of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 464-65, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Moores v. Greenberg, 834 F.2d 1105, 1107 (1st Cir.1987). Specifically, the Court must determine whether th......
  • Request a trial to view additional results
64 firm's commentaries
  • Acquisition Agreement Issues
    • United States
    • JD Supra United States
    • September 29, 2011
    ...substantive aspects of the claim are determined under state law. Simler v. Conner, 372 U.S. 221 (1963) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) and other cases); In re DaimlerChrysler AG Sec. Litig., 2003 WL 22769051, at *2 (D. Del. Nov. 19, 2003) affirmed by Tracinda Corp. v. ......
  • Acquisition Structure Decision Tree: Choice and Acquisition of Entities in Texas Course
    • United States
    • JD Supra United States
    • May 8, 2014
    ...aspects of the claim are determined under state law. Simler v. Conner, 372 U.S. 221, 222 (1963) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) and other cases); In re DaimlerChrysler AG Sec. Litig., No. 00-993-JJF, 2003 WL 22769051, at *2 (D. Del. Nov. 19, 2003) affirmed by Tracinda ......
  • Acquisition Agreement Issues by Byron F. Egan
    • United States
    • JD Supra United States
    • August 24, 2012
    ...substantive aspects of the claim are determined under state law. Simler v. Conner, 372 U.S. 221 (1963) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) and other cases); In re DaimlerChrysler AG Sec. Litig., 2003 WL 22769051, at *2 (D. Del. Nov. 19, 2003) affirmed by Tracinda Corp. v. ......
  • Acquisition Structure Decision Tree By Brian F. Egan
    • United States
    • JD Supra United States
    • April 30, 2011
    ...substantive aspects of the claim are determined under state law. Simler v. Conner, 372 U.S. 221 (1963) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) and other cases); In re DaimlerChrysler AG Sec. Litig., 2003 WL 22769051, at *2 (D. Del. Nov. 19, 2003) affirmed by Tracinda Corp. v. ......
  • Request a trial to view additional results
393 books & journal articles
  • Cause for Concern: Causation and Federal Securities Fraud
    • United States
    • Iowa Law Review Nbr. 94-3, March 2009
    • March 1, 2009
    ...of action for federal securities fraud as "largely the product of 'federal common law'"). [257] See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (rejecting the existence of a general federal common law). [258] See In re Merrill Lynch & Co. Research Reports Sec. Litig., 27......
  • Financial institutions fraud.
    • United States
    • American Criminal Law Review Vol. 42 Nbr. 2, March 2005
    • March 22, 2005
    ...broadly "whether relevant federal common-law standards could have survived [Erie.]" (referring to Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). (162.) See Erie, 304 U.S. 64 (holding that in federal courts, except in matters governed by the U.S. Constitution or by acts of Congress,......
  • Material Causes of the Five Eras of American Law
    • United States
    • The Path of Constitutional Law Part II: The Form Or Shape Of Constitutional Law
    • January 1, 2007
    ...note 14, at 103-04. [22] 36 U.S. (11 Pet.) 341 (1837), aff'g 24 Mass. (7 Pick.) 344 (1829). [23] 41 U.S. (16 Pet.) 1, 18-22 (1842). [24] 304 U.S. 64, 71-80 (1938). [25] 53 U.S. 299, 319-20 (1851). [26] 118 U.S. 557, 575-77 (1886). [27] 60 U.S. (19 How.) 393 (1857). [28] On the Civil War ame......
  • Constitutional administration.
    • United States
    • Stanford Law Review Vol. 69 Nbr. 2, February - February 2017
    • February 1, 2017
    ...of a "federal general common law," leaving state courts to do most common law judicial lawmaking, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)--as a general and theoretical matter, the federal judiciary does not make law. As Hamilton said in a justly famous passage, the judic......
  • Request a trial to view additional results