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

• Decision Date: 06 November 1912
• Citation: 201 F. 602
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: KELLY'S ADM'X v. CHESAPEAKE & O. RY. CO. et al.

201 F. 602

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

United States District Court, E.D. Kentucky.

November 6, 1912

O'Rear & Williams, of Frankfort, Ky., for plaintiff.

Lewis Apperson, of Mt. Sterling, Ky., and John T. Shelby, of Lexington, Ky., for defendant.

COCHRAN District Judge.

This cause is pending before me on a motion to remand. It is a suit to recover damages for the death of plaintiff's intestate. He was, at the time of his death, an engineer in the employ of the defendant company, and his death was caused by the derailment of his locomotive. The defendant George Robinson is alleged to have been defendant's master mechanic at the time.

The petition alleges that the defendant company was a common carrier engaged in interstate commerce; that the decedent was employed therein; that his death was caused by the negligence of the officers, agents, and employes of the defendant and by reason of defects and insufficiencies of the road, rails, and track, and of the engine, appliances, and machinery. Such are the allegations as to the defendant company. As to the defendant Robinson, the allegation, in substance, is that he negligently directed the decedent to operate the engine knowing that it was defective, and that the track over which he was to operate it was also defective.

The petition states a cause of action against the defendant company under the Employer's Liability Act (Act April 22 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p 1322)), and, under the decisions of the Kentucky Court of Appeals, one against the defendant Robinson under the wrongful death statute of Kentucky. The individual defendant is not liable under the Employer's Liability Act, for it is limited to common carriers engaged in interstate commerce and he is not such; and under the allegations of the petition there can be no liability of the corporate defendant under the Kentucky wrongful death statute, for the Employer's Liability Act, as to cases coming within its terms, supersedes that statute; and it is expressly alleged that the corporate defendant is a common carrier engaged in interstate commerce, the decedent was employed in such commerce, and he was killed by the negligence of the officers and agents and employes of the corporate defendant, and the defective condition of its roadbed and engine, thus bringing the case within the terms of the act.

Defendant's counsel speculates as to why plaintiff sued both defendants in the same action. Several hypotheses are put forward to account for this. But it does not seem to me that the determination of her actual thoughts on this matter is of consequence. The motion is to be disposed of on the case made by the facts alleged in the petition. It makes a case against the corporate defendant under the national statute and against the individual under the Kentucky statute. Under the allegations of the petition it would not be possible for plaintiff to recover as against the corporate defendant on the Kentucky statute, in case it should turn out in proof that her intestate was not employed in interstate commerce. She has alleged that he was so engaged, and under this petition she must prove this fact. To recover on the Kentucky statute, it must not only appear that her intestate was not engaged in interstate commerce, she must also allege it.

To sue the corporate defendant under the national statute, it was not necessary for the plaintiff to claim that she was so suing in her petition. It was sufficient for her to allege facts which brought her case within that statute, which she did. Judge Warrington, in the case of Garrett v. L. & N.R.R. Co. (C.C.A.) 197 F. 715, said:

'True it is not distinctly alleged in the declaration that the action is based upon the second Employer's Liability Act, but we think this effect must be given to the averments of the declaration that the deceased met his death while in the employ of the company, and while it was engaged in interstate commerce.

It is certain, therefore, that the suit as to the corporate defendant is on the national statute. It is equally certain that the suit as to the individual defendant is on the state statute, whatever plaintiff may have thought about it. It could not as to him be otherwise than on it. If I were to hazard a guess why it was the individual defendant was sued, I would say it was to make it cocksure that the case could not be removed. There was a feeling of uncertainty as to whether the suit was removable if against the corporate defendant alone, even though it was based on the national statute, and it was thought that whatever uncertainty there was would be done away with by suing the individual defendant also. It is likely that it was not thought out just how so doing would accomplish this end. As a matter of fact, so doing has brought about the only complication in the case.

Had the suit been brought against the corporate defendant alone there could have been no doubt that it was not removable; and this though diversity of citizenship exists between it and plaintiff, and the cause was removed on this ground. In the case of Van Brimer v. T. & P.R.R. Co. (C.C.) 190 F. 394, which arose before the new Judicial Code went into effect, it was held that a case arising under the Employer's Liability Act was removable where diversity of citizenship existed. In a number of cases arising both before and after that Code went into effect, it has been held otherwise. Those cases are the following, to wit: Symonds v. St. Louis & S.E.R.R. Co. (C.C.) 192 F. 353; Strauser v. Chicago, B. & Q.R.R. Co. (D.C.) 193 F. 295; Lee v. Toledo & L.W.R.R. Co. (D.C.) 193 F. 685; Ulrich v. N.Y., N.H. & H.R.R. Co. (D.C.) 193 F. 768; Hulac v. Chicago & N.W.R.R. Co. (D.C.) 194 F. 747; McChesney v. Ill. Cent. R.R. Co. (D.C.) 197 F. 85. This...