Chesapeake & O. Ry. Co. v. Banks' Adm'r

• Decision Date: 08 June 1911
• Citation: 137 S.W. 1066,144 Ky. 137
• Parties: CHESAPEAKE & O. RY. CO. et al. v. BANKS' ADM'R
• Court: Kentucky Court of Appeals

137 S.W. 1066

144 Ky. 137

CHESAPEAKE & O. RY. CO. et al. v. BANKS' ADM'R

Court of Appeals of Kentucky.

June 8, 1911

Appeal from Circuit Court, Clark County.

Action by Celia Banks' administrator against the Chesapeake &amp Ohio Railway Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Shelby & Shelby and Pendleton, Bush & Bush, for appellants.

Jouett & Jouett and A. Floyd Byrd, for appellee.

CARROLL J.

In this action by the administrator of Celia Banks to recover damages for her death alleged to have been caused by the negligence of the appellant railway company and its employés, a number of reasons are presented by counsel for the company why the judgment in favor of appellee against it should be reversed. But, before entering upon a discussion of the facts, and the errors alleged to have been committed during the trial, we will dispose of the question raised--that the case should have been removed to the federal court on the motion and petition of the appellant company, which was made and presented in due time and form. The appellant company is a Virginia corporation, and the suit was brought against it Edward Owens, the engineer, and G. H. Sanders, the fireman both of whom are citizens of Kentucky, and in charge of the engine that struck appellee's intestate.

The allegations of the petition necessary to be noticed in considering the point under consideration are as follows: "Plaintiff says that, as his said decedent was thus attempting to cross said track, defendant the Chesapeake & Ohio Railway Company, through the gross negligence of its agents, servants, and employés, and the defendant Edward Owens and G. H. Sanders through their own gross negligence, negligently failed to provide, maintain, and keep an adequate and sufficient lookout ahead of said train at the time said decedent went upon said track and was run over, and negligently failed to provide, maintain, and keep a lookout at all upon the left side thereof, and negligently failed to give any signal or warning of the starting or approach of said train, and negligently ran said engine and cars upon and over said decedent, and crushed, bruised, cut, and mangled her head, body, and limbs; *** that but for the gross negligence of defendants, they could have seen plaintiff's decedent in time to have stopped before striking her, and, after striking her and after she had been pushed by the engine to the east margin of Main street, they could still but for their gross negligence have stopped said train, which was at the time moving very slowly, before it ran over or materially injured her; but that instead of stopping in order to save her life, which they could easily have done, they were grossly negligent, in that they continued to run said engine forward until it had passed over her body. *** He says that all of the acts and omissions herein complained of were due to and caused by the gross negligence of the defendants engaged in equipping, controlling, directing, and operating said engine and train of cars."

The petition for removal on the part of the railway company did not deny that Celia Banks was struck and killed by one of its engines in charge of Owens and Sanders; but, after denying specifically the averments of the petition charging it, the engineer, and fireman with negligence, averred: "That each and all of them were false and untrue, and were known to the plaintiff, or could have been known by the exercise of ordinary diligence, to be false and untrue, but were made for the sole and fraudulent purpose of affording a basis, if possible, for the fraudulent joinder of the said Owens and Sanders with this petitioner in this action, and for the purpose of thereby fraudulently depriving this petitioner of its right under the Constitution and laws of the United States to have this action removed into the Circuit Court of the United States for the Eastern District of Kentucky, and that neither of said allegations as to either said Owens or said Sanders can be sustained by the plaintiff on the trial of this action." It is now the contention of counsel for the appellant company that: "For the purpose of determining its right to a removal, the lower court was bound to take the averments of the removal petition as true, and that, taking them as true, the right to remove was clearly made out. That where admitting averments of the removal petition to be true, where they made a proper case for removal, the application for removal in itself works ipso facto the transfer to the federal court, and deprives the state court of its jurisdiction; and, if the plaintiff desires to make an issue upon the truth of the averments upon which the right of removal is based, he must do this, not in the state court, but in the federal court, which latter court alone has jurisdiction to try such issue." It will at once be perceived that, if this contention is maintainable, the action against the railroad company should have been removed, although the petition stated a joint cause of action against all of the defendants sufficient to sustain a joint or several judgment against them. It will further be seen that its admission as a rule of practice would operate to work a removal to the federal court so far as the nonresident defendant was concerned of every action involving $2,000 or more brought in a state court against a nonresident and resident defendants, and give to the federal courts the exclusive right to hear and determine whether or not the action should be removed. The argument of counsel is that although the petition of the plaintiff may in good faith state a good joint cause of action against all of the defendants, and although the plaintiff may be able to support the petition by evidence that would amply sustain a judgment against all of them, nevertheless if the petition for removal charges, as in this case, that the joinder of the resident defendants was fraudulent, the state court is at once and upon the filing of the removal petition divested of jurisdiction to hear and determine the question of removal, and the action must be at once transferred to the federal court, in which court the plaintiff if he desires to have the action remanded to the state court may go and make his motion, which the federal court may grant or refuse as in its judgment may seem right and proper. Counsel, in short, would have us say that such an action as we have described brought in a state court that had jurisdiction of the subject-matter of the action and the parties must be removed upon the mere filing of the petition, although the action could not have been brought in the federal court in the first instance, as the federal courts have not jurisdiction where there is a joint controversy and one of the defendants is a resident of the state in which the action is brought.

We fully appreciate the fact that in cases in which the federal courts have jurisdiction their authority is paramount to that of the state courts, and that the state courts must yield in all cases in which there is conflict of jurisdiction. Where the point in issue involves a federal question, and it has been ruled by the Supreme Court, the state courts should and do follow its ruling.

But, on the other hand, if the action has been brought in a state court that has jurisdiction of the subject-matter as well as of the parties to the action, its right to hear and determine the cause should not be surrendered in the absence of a plain ruling adverse to its jurisdiction by a court of superior authority. Questions like this have come before the Supreme Court in many cases, but we do not think the decisions of that court sustain counsel in his contention that the filing of a sufficient removal petition and bond in an action rightfully brought in a state court and that could not be brought originally in the federal court operates to transfer the case merely because the removal petition charges a fraudulent joinder. In Alabama Great Southern R. Co. v Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441, an action was brought in a state court in Tennessee by the administrator of Florence James, who was a citizen of that state, for the negligent killing of his intestate by the defendant railroad company, against the railroad, an Alabama corporation, and Mills and Fuller, both citizens of Tennessee. The petition averred, in substance, that the plaintiff's intestate had been negligently and wrongfully run over while upon the track of the railroad company by an engine and train of cars owned and operated by it, which was at the time under the management and control of Mills, its conductor, and Fuller, its engineer. The court, quoting with approval from the case of Powers v. Chesapeake & Ohio R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673, said: "It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separable controversy which will authorize its removal by some of the defendants into the circuit court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said, 'a defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares...