McCabe's Admx. v. Maysville & B. S. R. R. Co., &C.

• Court: Court of Appeals of Kentucky
• Writing for the Court: Hobson
• Citation: 112 Ky. 861
• Decision Date: 05 March 1902
• Parties: McCabe's Admx. v. Maysville & B. S. R. Co., &c.

112 Ky. 861 McCabe's Admx.
v.
Maysville & B. S. R. Co., &c. Court of Appeals of Kentucky. March 5, 1902. APPEAL FROM MASON CIRCUIT COURT.

JUDGMENT REMOVING CAUSE TO UNITED STATES CIRCUIT COURT AND PLAINTIFF APPEALS. REVERSED.

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A. E. COLE & SON, ATTORNEYS FOR APPELLANT.

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COPYRIGHT MATERIAL OMITTED

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W. H. WADSWORTH, ATTORNEY FOR APPELLEE.

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COPYRIGHT MATERIAL OMITTED

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OPINION OF THE COURT BY JUDGE HOBSON — REVERSING.

Appellant, Emma R. McCabe, as administratrix of Peter McCabe, deceased, filed this suit in the Mason circuit court against appellees, the Maysville & Big Sandy Railroad Company and the Chesapeake & Ohio Railway Company, to recover damages for the death of her intestate, who, she alleged, was killed in September, 1901, while walking along Third street in the city of Maysville, by an engine and train of the Chesapeake & Ohio Railway Company, by reason of the negligence of its agents in charge thereof, as well as the negligence of the Maysville & Big Sandy Railroad Company in permitting it to use the track, which was the property of the latter company. She alleged that after the building and completion of its road, and more than twelve months before the injuries to her intestate, the Maysville & Big Sandy Railroad Company leased and transferred its entire line of road to the Chesapeake & Ohio Railway Company, and that the latter has since that time been in the exclusive possession and control it; that by the laws of Kentucky the lease and transfer were ultra vires and void; that in December, 1893, pursuant to section 211 of the Constitution of Kentucky, and section 841, Kentucky Statutes, the Chesapeake & Ohio Railway Company became a corporation, citizen, and resident of this State by filing in the office of the secretary of State, and in the office of the railroad commission, copies of its articles of incorporation, and that thereupon a certificate of said incorporation was issued to it by the secretary of State. She further alleged that the railroad track was laid in Third street under an ordinance from the city authorities; that the railroad track took up the whole street, so as to render it unfit for travel by wagons or vehicles; that the city authorities were without power to authorize such a use of the street; and that

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the ordinance was void, and the operations of the trains on it was illegal. She prayed judgment for $25,000. The Chesapeake & Ohio Railway Company filed its petition to remove the case to the circuit court of the United States, alleging that it is a corporation created under the laws of the State of Virginia, and a citizen of that State, and of no other; that the Maysville & Big Sandy Railroad Company is not a proper party to the action, and was made a party to it for the sole purpose of preventing a removal of the case to the United States court; that no cause of action is shown in the petition against the Maysville & Big Sandy Railroad Company; that it had authority of law to make the lease referred to, and is insolvent. It is specially pleaded in the petition that, by virtue of the charter and amendments thereto of the Maysville & Big Sandy Railroad Company, and particularly of the act of February 17, 1866, entitled "An act authorizing the sale of the Maysville & Big Sandy Railroad, and providing for the organization of a new company under its charter to construct said road" (Acts 1865-66, p. 664), and of the general laws of the State of Kentucky, that company had full power and authority to make the lease referred to. On this petition the court, over the plaintiff's objection, ordered the case to be removed to the federal court, and the plaintiff prosecutes this appeal.

In Powers v. Railroad Co., 169 U. S., 92, 18 Sup. Ct., 264, 42 L. Ed., 673, the United States supreme court said: "A petition for removal, when presented to the State court, becomes part of the record of that court, and must doubtless, show, taken in connection with the other matters on that record, the jurisdictional facts upon which the right of removal depends; because, if those facts are not made to appear upon the record of that court, it is not bound or

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authorized to surrender its jurisdiction, and, if it does, the circuit court of the United States can not allow an amendment of the petition, but must remand the case." It was the duty, therefore, of the court below, when the petition for removal was presented, to determine whether the jurisdictional facts upon which the right of removal depended appeared in the petition, and, if they did not appear, to overrule the motion for the removal of the case. On appeal from that judgment the same duty devolves upon this court. Under the act of Congress the jurisdictional facts to sustain removal are that "there shall be a controversy which is wholly between citizens of different States and which can be fully determined as between them." It has been held that in a suit against two defendants jointly liable, where one of them is a citizen of the State and the other a citizen of another State if they are properly sued jointly, a removal can not be had by the non-resident defendant. Railway Co. v. Dixon, 179 U. S., 131, 21 Sup. Ct. 67, 45 L. Ed., 121. The common-law distinctions between the different forms of action have been abolished by our Code of Practice, and all persons who are liable for a wrong may now be sued jointly in this State in an action to recover for negligence. A railroad company is given by the State certain franchises, and thereby assumes certain burdens. These it can not transfer to another without legislative authority, so as to exempt itself from responsibility for the torts of its transferee. The Maysville & Big Sandy Railroad Company was therefore liable to appellant jointly with the Chesapeake & Ohio Railway Company, if the transfer was unauthorized, and, in this event, the suit against the two companies jointly might be properly maintained. To hold otherwise would be to require the plaintiff to prosecute two actions, although each of the defendants was alike

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liable to him. The question then to be determined is, did the petition for removal show that the controversy was wholly between the plaintiff and the Chesapeake & Ohio Railway Company, and that the Maysville & Big Sandy Railroad Company was not a proper party to the action? Section 203 of the State Constitution is in these words: "No corporation shall lease or alienate any franchise so as to relieve the franchise or property held thereunder from the liability of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use or enjoyment of such franchise or any of its privileges." The franchises of a corporation are its property. The declaration that these in case of a lease or alienation shall not be relieved from the liability of the lessor or grantor, lessee or grantee, contracted or incurred in the use of the franchise, or any of its privileges, is, in substance, a declaration that the corporation shall not be relieved of such liability; for its existence is inseparable from all of its franchises. Under this section, therefore, no lease made by a corporation can exempt it from...