Rutherford v. Illinois Cent. R. Co.

• Decision Date: 01 March 1905
• Citation: 120 Ky. 15,85 S.W. 199
• Parties: RUTHERFORD v. ILLINOIS CENT. R. CO. et al.
• Court: Kentucky Court of Appeals

85 S.W. 199

120 Ky. 15

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

Court of Appeals of Kentucky.

March 1, 1905

Appeal from Circuit Court, Graves County.

"To be officially reported."

Action by Sallie A. Rutherford against the Illinois Central Railroad Company and others. From an order removing the cause to the federal court, plaintiff appeals. Reversed.

Lee &amp Hester, for appellant.

Robbins & Thomas and Trabue, Doolan & Cox, for appellees.

NUNN J.

The appellant, Sallie A. Rutherford, filed her petition in the Graves circuit court against the appellee Illinois Central Railroad Company, and George F. Mullinix, Tom Hudson, Tom Caulder, and C. H. Hendrix, in which she alleged, in substance, that on or about the 15th day of July, 1904, she bought a ticket and took passage on one of appellee's trains at Fulton, Ky. for her home, at Mayfield, Ky.; that she was a passenger upon this train, and was entitled to be conveyed to her home with care and safety; that appellee had its codefendants, Mullinix, Hudson, Caulder, and Hendrix, its agents, servants, and employés, in charge of this train; and that they so negligently managed and operated it as to cause the coach in which she was riding to be suddenly and unnecessarily jerked and bumped, and this was done in such a violent and reckless manner that it threw her violently against a seat and other objects in the coach, thereby injuring her both externally and internally, wounding and bruising her so that her health has been permanently impaired, for which she prayed judgment for $5,000 against all of the defendants. All the defendants were duly served with process. The appellee appeared within the proper time and filed its petition and a bond, and sought a removal of the action to the United States Circuit Court. This petition omitting the formal parts, is as follows: "Your petitioner further alleges and shows that the cause of action attempted to be set up in the plaintiff's petition against it and the other defendants is separable, and is wholly a controversy between citizens of different states viz., the plaintiff, Sallie A. Rutherford, a citizen and resident of the commonwealth of Kentucky, and your petitioner, the Illinois Central Railroad Company, a citizen and resident of the state of Illinois. Your petitioner further alleges and shows that the allegations in the plaintiff's petition that she received injuries which were the result of any negligence on the part of the defendants George F. Mullinix, Tom Hudson, Tom Caulder, and C. H. Hendrix, by reason of either of them moving said train or coach in which plaintiff was a passenger suddenly or roughly, or that the train or coach was so operated by either of them by negligently pushing, pulling, striking, jarring, or jerking the car and coach in which she was a passenger with such suddenness and violence and in such reckless manner that it threw her down violently, were and are wholly untrue, and she received no injury which was the result of any negligence or carelessness on the part of either of your petitioner's codefendants, and the plaintiff, at the time this action was instituted, knew or had good reason to believe that the allegations of her petition to the effect that her injuries were the result of negligence on the part of your petitioner's codefendants, or either of them, were wholly untrue; and it says that the defendants George F. Mullinix, Tom Hudson, Tom Caulder, and C. H. Hendrix were joined as defendants in this action for the sole and fraudulent purpose of preventing your petitioner from removing this action from the state court, and for the sole purpose of fraudulently defeating the jurisdiction of the United States Circuit Court; and your petitioner further alleges that the averments of fact on which the joint liability of your petitioner and its codefendants is asserted are so palpably untrue and unfounded as to make it improbable that the plaintiff could have asserted them in good faith." Upon the filing of this petition and the bond, the court granted appellee's prayer for a removal of the cause, of which action appellant complains.

The appellee contends that the action of the lower court was correct, for the reason that it alleged in its petition for...