McChesney v. Illinois Cent. R. Co.

• Decision Date: 31 May 1912
• Citation: 197 F. 85
• Parties: McCHESNEY v. ILLINOIS CENT. R. CO.
• Court: U.S. District Court — Western District of Kentucky

197 F. 85

McCHESNEY v. ILLINOIS CENT. R. CO.

United States District Court, W.D. Kentucky.

May 31, 1912

Miller & Miller, of Paducah, Ky., for plaintiff.

Trabue Doolan & Cox, of Louisville, Ky., for defendant.

EVANS District Judge.

This action was brought in the state court to recover $25,000 damages from the defendant for the alleged negligent killing while engaged in interstate commerce, of plaintiff's intestate, an employe of the defendant. The averments of the petition 'clearly and distinctly' show (Hanford v. Davies, 163 U.S. 280, 16 Sup.Ct. 1054, 41 L.Ed. 157) a cause of action arising under the provisions of the Act of Congress entitled 'An act relating to the liability of common carriers by railroad, to their employes in certain cases,' approved April 22, 1908, and commonly called the 'Employer's Liability Act.' The plaintiff does not expressly declare in his petition that his suit is based upon that act, but it was not necessary for him to do so, if the averments of his pleading show a right to recover under its provisions. And the opinion of the Supreme Court in Mondou v. New York, etc., R.R. Co., 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327, decided January 15, 1912, removes all doubt (if any could exist) that plaintiff's action is necessarily based upon that act. In considering the question whether it had superseded all state laws in the premises when Congress acted upon this particular phase of its power to regulate commerce between the states, the court said:

'And now that Congress has acted, the laws of the state, in so far as they cover the same field, are superseded, for necessarily that which is not superior must yield to that which is.'

This of course, means that all actions such as this can have no basis except the act of April 22, 1908, whether such actions are brought in the state courts or in the federal courts. In this connection, the court, near the close of its opinion said:

'We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion.'

It follows that all other laws in respect to the matters embraced therein were swept away when the act became the supreme law of the land.

The plaintiff being a citizen of Kentucky and the defendant a citizen of Illinois, the latter, upon the sole ground of diverse citizenship, removed the action here, and the plaintiff has moved to remand it to the state court. In support of the removal, the chief contentions are, first that a proper construction of the removal statutes sustains the right of the defendant to remove a case where the sole ground therefor is diverse citizenship, notwithstanding a further enactment which forbids the removal of any case arising under the act referred to, the argument being that diverse citizenship is a ground for removal separate from the nature of the cause of action, and independent of it; and, second, that prohibition of removal in cases arising in the conduct of interstate commerce, while allowing it in cases arising in intrastate commerce, is a discrimination against the former class because it denies to it the equal protection of the laws and due process of law as well, and is, therefore, violative of the fifth and fourteenth articles of amendment to the Constitution of the United States.

1. Relative to the first of these questions, on December 9 1911, and so far as we know before any decision taking the same view of the question had been rendered, we expressed the opinion in Doherty v. Illinois Central R.R. Co. that under the act of April 22, 1908, as amended by that of April 5, 1910, the removal of any case brought under the first-named act was prohibited. Our view, stated orally, was that, if Congress had intended to exclude from the operation of the amendment a case which theretofore was removable upon the ground of diverse citizenship, it would have plainly said so, especially as it must be presumed to know that in a very large number of such cases the citizenship would be diverse. However, Congress made no exception, but used general language. This view was different from that expressed in Van Brimmer v. T. & R.R.R....