Miriam Allister v. Chesapeake Ohio Railway Company

• Decision Date: 06 March 1917
• Docket Number: No. 748,748
• Citation: 243 U.S. 302,37 S.Ct. 274,61 L.Ed. 735
• Parties: MIRIAM McALLISTER, as Administratrix of the Estate of A. J. McAllister, Deceased, Plff. in Err., v. CHESAPEAKE & OHIO RAILWAY COMPANY and Maysville & Big Sandy Railroad Company
• Court: U.S. Supreme Court

243 U.S. 302

37 S.Ct. 274

61 L.Ed. 735

MIRIAM McALLISTER, as Administratrix of the Estate of A. J. McAllister, Deceased, Plff. in Err.,

v CHESAPEAKE & OHIO RAILWAY COMPANY and Maysville & Big Sandy Railroad Company.

No. 748.

Submitted January 30, 1917.

Decided March 6, 1917.

Messrs. Allan D. Cole, W. T. Cole, and H. W. Cole for plaintiff in error.

Messrs. E. L. Worthington, W. D. Cochran, Le Wright Browning, and Proctor K. Malin for defendants in error.

Mr. Justice Clarke delivered the opinion of the court:

On March 26, 1902,—fifteen years since,—the plaintiff filed her petition in the circuit court of Greenup county, Kentucky, against the Chesapeake & Ohio Railway Company, a corporation organized under the laws of Virginia, hereinafter called the Virginia company, lessee, and the Maysville & Big Sandy Railroad Company, a corporation organized under the laws of Kentucky, hereinafter called the Kentucky company, the owner and lessor of the railway on which plaintiff's decedent, on March 15th, 1902, was run down by a passing train and so injured that he soon thereafter died.

In due time, the Virginia company filed a petition for removal of the cause to the circuit court of the United States for the eastern district of Kentucky, in which petition it is alleged: that there is in the case a separable controversy which is wholly between citizens of different states, the petitioner, a corporation of Virginia, and the plaintiff, a citizen of Kentucky; that the Kentucky corporation is not a necessary or proper party to the cause, which can be determined between the Virginia company and the plaintiff without reference to the Kentucky company; and that the Kentucky company is 'wrongfully, fraudulently, and falsely' made a party for the sole purpose of preventing removal to the Federal court, without any intention on the part of the plaintiff of proving against it any of the acts of negligence alleged in the petition. It is charged that no cause of action is stated in the amended petition against the Kentucky company.

On May 24, 1905, the plaintiff filed a motion to remand the case to the state court, on the ground that the Federal court 'is without jurisdiction to hear and determine the cause,' which motion was overruled on the same day. Various consent continuances carried the case over for two and one-half years, until December 27, 1907, when the plaintiff filed a motion to set aside 'the order heretofore made denying her motion to remand the case,' and in support of this motion, on the same day, she filed an answer to the petition for removal which is, in substance, a detailed denial of all of the allegations of that petition.

On the 25th of the following May (1908) plaintiff's motion to reconsider the court's ruling denying her motion to remand the case was submitted, and thirty days given for filing a brief, but it was not decided until a year later, when, on May 24th, 1909, it was overruled. Again various continuances by consent caused the case to go over for three years more, until May 27th, 1912, when the plaintiff's motion to reconsider the court's action in overruling her motion to remand was again overruled. Then follow other continuances, aggregating two years more, until, on May 25th, 1914, on motion of the defendant, the case was dismissed for want of prosecution, in an order which, four days later, was set aside, and again nothing was done for eighteen months, until December 15th, 1915, when the case was a second time dismissed for want of prosecution, in an order which was revoked on the 24th of the following July, at which time the former action of the court in overruling plaintiff's motion to remand the case was reaffirmed, and the plaintiff, having elected to stand on her motion to remand, and 'refusing to recognize the jurisdiction of the United States court or to proceed with the prosecution of her case therein,' upon motion, it was dismissed at plaintiff's costs.

On the next day the district judge allowed a writ of error to this court in an order reciting that plaintiff's petition 'had been dismissed by the judgment of this court upon consideration solely of the question of this court's jurisdiction of the action.'

The case is properly in this court, the order of the district judge being sufficient to take the place of the certificate required by § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215]. Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 282, 46 L. ed. 910, 22 Sup. Ct. Rep. 681; Herndon-Carter Co. v. James N. Norris, Son & Co. 224 U. S. 496, 498, 56 L. ed. 857, 858, 32 Sup. Ct. Rep. 550.

The validity of the denial of the plaintiff's motion to remand the case, which is thus brought before us, must be determined upon the allegations of the amended petition and of the petition for removal (Madisonville Traction Co. v. St. Bernard Min. Co. 196 U. S. 239, 245, 49 L. ed. 462, 464, 25 Sup. Ct. Rep. 251), when tested by the laws of Kentucky (Illinois C. R. Co. v. Sheegog, 215 U. S. 308, 54 L. ed. 208, 30 Sup. Ct. Rep. 101; Chesapeake & O. R. Co. v. Cockrell, 232 U. S. 146, 153, 58 L. ed. 544, 547, 34 Sup. Ct. Rep. 278). Fully recognizing this rule, the district court decided the motion on the face of the pleadings, and its reasons for refusal to remand the case, as stated in McAllister v. Chesapeake & O. R. Co. 85 C. C. A. 316, 157 Fed. 741, 744, 13 Ann. Cas. 1068, are, that the Kentucky company had lawful authority to lease its railroad to the Virginia company (McCabe v. Maysville & B. S. R. Co. 112 Ky. 861, 66 S. W. 1054), that the allegation of plaintiff's amended petition that plaintiff's decedent was injured 'at or near a public crossing' is an admission that he was a trespasser on the railroad track at the time (Davis v. Chesapeake & O. R. Co. 116 Ky. 144, 75 S. W. 275); and that the lessor company is not liable for injury to a trespasser by the negligence of its lessee. These reasons were restated at length by the district judge when he denied the motion to reconsider his refusal to remand.

This conclusion of the district court, that the allegation of the amended petition that the deceased, 'at the time of the injuries complained of, was at or near a public crossing in the town of Fullerton,' is an admission that he was a trespasser at the time, is based, we think, upon an insufficient statement of the allegations of the amended petition, and upon much too narrow a view of the effect of the decisions of the Kentucky court of appeals as applied to the facts pleaded in this case.

The allegations of the amended petition are:

That since before the year 1890 the Virginia company had been operating the line of railway owned by the Kentucky company under a lease 'which in no wise relieves the lessor from liability for the torts of the operating lessee,' and that, on March 15th, 1902, when plaintiff's decedent 'was at or near a public crossing, . . . a place in the town of Fullerton where numerous people were accustomed to be and travel,' as the defendants well knew, without fault on his part, and while in plain view of the agents and servants of the defendants, he was 'negligently and wantonly' run down and killed by a train operated by the defendant, the Virginia company. The negligence alleged is excessive speed of the train, 50 miles an hour,—failure to keep proper lookout for travelers at such a place, and failure to give adequate signals or warnings or the approaching train.

In the case cited by the court in its opinion (Davis v. Chesapeake & O. R. Co. supra), the petition alleged that 'the intestate was run over and killed at or near a private crossing over the railroad track, between her garden and her home;' that it was 'not far' from public crossings to the east and west of her; and that the train was negligently running ...