Chesapeake & O. Ry. Co. v. Kelly's Adm'x

• Decision Date: 15 December 1914
• Citation: 161 Ky. 655,171 S.W. 185
• Parties: CHESAPEAKE & O. RY. CO. v. KELLY'S ADM'X.
• Court: Kentucky Court of Appeals

171 S.W. 185

161 Ky. 655

CHESAPEAKE & O. RY. CO. v. KELLY'S ADM'X.

Court of Appeals of Kentucky.

December 15, 1914

On petition for rehearing. Overruled.

For former opinion, see 160 Ky. 296, 169 S.W. 736. See, also, 171 S.W. 182.

CARROLL J.

Counsel for appellant, in a petition for a rehearing, present for the first time the argument that the judgment below should he reversed, because the Montgomery circuit court had no jurisdiction to entertain or determine the action. The seventh amendment to the Constitution of the United States provides:

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."

And it has been uniformly held by the Supreme Court of the United States that the jury trial contemplated by this section is the right to a trial by a jury of 12 men, whose finding shall be unanimous. American Publishing Co. v. Fisher, 166 U.S. 464, 17 S.Ct. 618, 41 L.Ed. 1079; Thompson v Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061; Black v. Jackson, 177 U.S. 349, 20 S.Ct. 648, 44 L.Ed. 801.

Section 248 of the Constitution of this state reads in part:

"The General Assembly may provide that in any or all trials of civil actions in the circuit courts, three-fourths or more of the jurors concurring may return a verdict, which shall have the same force and effect as if rendered by the entire panel."

Section 2268 of the Kentucky Statutes, enacted pursuant to this constitutional provision, provides:

"That in all trials of civil actions in the circuit courts, three-fourths or more of the jurors concurring may return a verdict, which shall have the same force and effect as if rendered by the entire panel. But where a verdict is rendered by a less number than the whole jury, it shall be signed by all the jurors who agree to it."

Section 6, as amended in 1910, of the federal Employers' Liability Act, provides that:

"Under this act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several states, and no cases arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

The argument against the jurisdiction of the Montgomery circuit court is this: It is said that Congress did not have power to confer or commit jurisdiction of cases arising under the federal Employers' Liability Act to the courts of any state that does not recognize the binding necessity for a jury of 12 and a unanimous verdict, or that has by its Constitution and laws taken from its courts the authority to require a unanimous verdict of such a jury, because under the seventh amendment it is indispensable that every court that hears and determines a common-law case arising under congressional legislation shall have the power to require a jury of 12 and a unanimous verdict, which power is denied to the courts of this state by the Constitution and statutes of the state. It will, however, be observed that this congressional legislation does not confer jurisdiction on state courts to hear and determine cases arising under the act; it merely recognized the existing jurisdiction of state courts, and to make plain this jurisdiction the act provides that:

"No cases arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States."

It is further well established that state courts may take jurisdiction to enforce civil rights and liabilities arising under congressional legislation, unless there be something in the congressional legislation forbidding the state courts to take jurisdiction of cases arising under it. Thus it was said in Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833:

"The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty. * * * If an act of Congress gives a penalty [meaning civil and remedial] to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws."

In L. & N. R. R. Co. v. Scott, 133 Ky. 724,...