Illinois Cent. R. Co. v. Houchins

• Decision Date: 28 November 1905
• Citation: 121 Ky. 526,89 S.W. 530
• Parties: ILLINOIS CENT. R. CO. et al. v. HOUCHINS.
• Court: Kentucky Court of Appeals

89 S.W. 530

121 Ky. 526

ILLINOIS CENT. R. CO. et al. v. HOUCHINS.

Court of Appeals of Kentucky.

November 28, 1905

Appeal from Circuit Court, Muhlenberg County.

"To be officially reported."

Action by J. E. Houchins against the Illinois Central Railroad Company and another. From a judgment for plaintiff defendants appeal. Reversed.

Jonson & Wickliff, J. S. Wortham, J. M. Dickinson, and Trabue Doolan & Cox, for appellants.

B. F Proctor, G. H. Herdman, Greene & Van Winkle, and S.D. Hines, for appellee.

HOBSON C.J.

J. E. Houchins was a postal clerk on a mail train running between Paducah and Louisville on the Illinois Central Railroad. On November 7, 1902, at 11:36 a. m., the train on which Houchins was collided with an engine and tender in the yards at Central City. By reason of the collision Houchins was thrown against the end of the car. At first it was not thought that he was very much hurt, as there was no apparent injury of a serious character. He was taken to his home at Leitchfield and was confined to his bed about 20 days. After that he went about on crutches for a while, and then with a cane. Some time afterwards he undertook to go back to work on the road, and found that he could not stand the work on the train, and took a place in Louisville as transfer clerk, where he has since been employed, which pays him $900 a year. His salary as postal clerk was $1,000, and his living in Louisville is more expensive than at Leitchfield. There is a limp in his walk, but the proof is very conflicting as to the extent of his injuries. The trial occurred in January, 1904, or about 15 months after he was hurt. A number of physicians testified on the trial for the railroad company that they had examined him carefully and with the aid of the X-rays, but could find nothing wrong; that he was a fine insurance risk and normal in every way. On the other hand, a number of physicians testified for him that his spine was injured and that a lump had formed in his hip joint, causing lameness and permanently disabling him from following his vocation as postal clerk. According to the evidence for him he was to a large extent a nervous wreck, while according to the evidence for the railroad company he is a healthy man and in normal condition. The jury found a verdict in his behalf for $10,500 against the railroad company and the engineer in charge of the engine with which the train collided, and the defendants appeal.

Williams, who had charge of the engine with which the train collided, had taken his engine off the side track and was going down the main track to get to his train, which was due to leave shortly. As he was going out on the main track his attention was called to the fact that the passenger train was about due, and he said that it was not due yet, that he had just looked at his time card, that the passenger train was due at 11:55, and that it was then only 11:35. He went out on the track, and just after he got on the track the passenger train came around the curve and ran into him. The fact was the passenger train was due at 11:35, and he had made a mistake in reading his time-card and had taken the leaving time of the passenger train, which was 11:55, for its arriving time, which was 11:35. Those in charge of the passenger train were in no way in fault for the collision. The train was on time, and the trouble was wholly due to Williams' making the mistake in the reading of his time card. The engineer of the train was killed, and the fireman was badly hurt, and so were several other persons. The railroad company filed its petition for a removal of the case to the Circuit Court of the United States, aptly alleging that Williams was fraudulently joined as a defendant for the purpose of preventing a removal of the case to the United States Circuit Court, and that the allegations of the plaintiff's petition were known to him to be untrue, and that he did not expect to prove them when he made them, and that they were made solely for the purpose of preventing a removal of the case to the United States Circuit Court. The court overruled the motion to remove the case, and the railroad company then filed an answer, in which it admitted that the collision was by reason of the ordinary negligence of Williams, the engineer in charge of the switch engine, and confessed to liability to Houchins in the sum of $250.

It is insisted that the court erred in refusing to remove the case to the Circuit Court of the United States, on the idea that the company cannot be sued jointly with the servant whose negligence caused the injury where it was not independently at fault, that under the allegations of the petition for removal the railroad company had a right to remove the case, and that the Circuit Court of the United States must determine the questions arising on the allegations of the petition for removal. We cannot accede to this view. The plaintiff's petition stated a cause of action within the jurisdiction of the state court. The joint cause of action so stated by him in his petition was not removable to the federal court under the act of Congress. That court had no jurisdiction over the case, and any order it made in a case of which it had no jurisdiction was void. Consent cannot confer jurisdiction, and if the railroad company had been beaten in that court it might at the end of the litigation have raised the question of jurisdiction. It was not contemplated by the act of Congress that every case, whether removable or not, should be subject to the control of the federal courts. If the course urged in this case is to be approved, then every case to which a nonresident is a party, although liable jointly with the others, may be removed to the federal court. The action was properly brought in the state court. That court admittedly had jurisdiction, and it certainly cannot be maintained that it should have surrendered jurisdiction over the case and sent it to a court for trial which on the face of the papers was without jurisdiction to make any order in it.

It is settled that under the law of Kentucky Williams and the railroad were jointly liable to Houchins for his injury, and might be sued jointly or severally. C. & O. R. R. Co. v Dixon, 104 Ky. 608, 47 S.W. 615; Cincinnati, etc., R. R. Co. v. Cook, 113 Ky. 161, 67 S.W. 383; I. C. R. R. Co. v. Coley, 89 S.W. 234, 28 Ky. Law Rep. 336. Is this action, which confessedly lies in the state court under laws of the state, to be controlled by the federal court, and may that court, if of opinion that a joint action does not lie, take jurisdiction of the case? Such a rule would deprive the litigant of his right to try his case under the laws of the state, and would compel him to get into the merits of his case before a tribunal without jurisdiction to sit in it. If the state court makes a mistake, an appeal may be taken to this court; and if the railroad company feels aggrieved by the decision of this court it may in every case prosecute an appeal to the Supreme Court of the United States on the question. So it is not without...