Chesapeake Ohio Railway Company v. Donald

• Decision Date: 17 May 1909
• Docket Number: No. 158,158
• Citation: 214 U.S. 191,53 L.Ed. 963,29 S.Ct. 546
• Parties: CHESAPEAKE & OHIO RAILWAY COMPANY and Maysville & Big Sandy Railroad Company, Plffs. in Err., v. J. W. McDONALD, Administrator of Nancy J. Wilson, Deceased
• Court: U.S. Supreme Court

214 U.S. 191

29 S.Ct. 546

53 L.Ed. 963

CHESAPEAKE & OHIO RAILWAY COMPANY and Maysville & Big Sandy Railroad Company, Plffs. in Err.,

v J. W. McDONALD, Administrator of Nancy J. Wilson, Deceased.

No. 158.

Argued April 19, 1909.

Decided May 17, 1909.

Messrs. E. L. Worthington, W. H. Wadsworth, W. D. Cochran, and LeWright Browning for plaintiffs in error.

Messrs. Allan D. Cole, T. R. Phister, R. D. Wilson, and W. T. Cole for defendant in error.

Mr. Justice Day delivered the opinion of the court:

The defendant in error, J. W. McDonald, as administrator of Nancy J. Wilson, deceased, on March 23, 1900, brought suit in the Lewis circuit court of Kentucky against the Chesapeake & Ohio Railway Company and the Maysville & Big Sandy Railroad Company, and certain employees of the former, to recover damages for the alleged wrongful death of Nancy J. Wilson. On May 29, 1900, the Chesapeake & Ohio Railway Company, a corporation of Virginia, filed a petition for removal of the case to the United States circuit court for the eastern district of Kentucky, and an order of removal was made accordingly. On September 3, 1902, the case having been remanded by the United States circuit court, it was redocketed in the state court. On January 19, 1903, the plaintiff discontinued the action as against the five individual defendants. On January 21, 1903, the Chesapeake & Ohio Railway Company filed another petition to remove the case to the United States circuit court on the ground of separable controversy. This motion for removal was overruled by the Lewis circuit court, and, thereafter, on May 19, 1904, the case went to trial in the Lewis circuit court, and that court directed a verdict for the railroad companies. Upon appeal to the court of appeals of Kentucky, that judgment was reversed. 27 Ky. L. Rep. 778, 86 S. W. 690.

A second trial of the case in the Lewis circuit court, on September 27, 1906, resulted in a verdict and judgment for the defendant in error. From that judgment an appeal was taken to the Kentucky court of appeals, and it was there affirmed. 31 Ky. L. Rep. 500, 102 S. W. 810.

The Federal question attempted to be presented grows out of the alleged error in refusing, upon the second application, to remove the cause from the Lewis circuit court to the United States circuit court for the eastern district of Kentucky.

The right to review a judgment of a state court by error proceedings in this court is regulated by § 709 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 575). To lay the foundation for such right of review it is necessary to bring the Federal question in some proper manner to the consideration of the state court whose judgment it is sought to review; if this is not done, the Federal question cannot be originated by assignments of error in this court. The Federal right asserted in this case comes within the third class named in § 709 of the Revised Statutes, wherein a right, title, privilege, or immunity is claimed under the United States, and the decision is against such right, title, privilege, or immunity. In this class of cases the statute requires that such right or privilege must be specifically set up and claimed in the state court; and in any of the classes of cases mentioned in § 709 it is essential that the record disclose that the Federal question involved was decided, or that the judgment necessarily involved the Federal right, and decided it adversely to the claim of the plaintiff in error. Columbia Water Power Co. v. Columl a Electric Street R. Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247; Fowler v. Lamson, 164 U. S. 252, 41 L. ed. 424, 17 Sup. Ct. Rep. 112; Clarke v. McDade, 165 U. S. 168, 172, 41 L. ed. 673, 674, 17 Sup. Ct. Rep. 284; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248, 46 L. ed. 171, 22 Sup. Ct. Rep. 120, 124. In the latter case this court said:

'It is settled that this court, on error to a state court, cannot consider an alleged Federal question when it appears that the Federal right thus relied upon had not been, by adequate specification, called to the attention of the state court, and had not been by it considered, not being necessarily involved in the determination of the cause. Green Bay & M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 67, 43 L. ed. 364, 368, 19 Sup. Ct. Rep. 97; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 654, 655, 41 L. ed. 1149, 1151, 1152, 17 Sup. Ct. Rep. 709, and cases cited.'

In the opinion of the Kentucky court of appeals in this case the question of the correctness of the order of removal is not considered, nor is there anything in the record to indicate that the alleged error in refusing to remove the case on the second application was brought to the attention of the Kentucky court of appeals. In this court the assignments of error concern the alleged error in refusing to remove the case upon the second application, and avers that the Kentucky court of appeals erred in holding, in substance and effect, that the plaintiff in error had no such right of removal. But, as we have said, the assignments of error in this court cannot enlarge the right of review. Moreover, it is...