Stevenson's Adm'r v. Illinois Cent. R. Co.

• Decision Date: 15 March 1904
• Parties: STEVENSON'S ADM'R v. ILLINOIS CENT. R. CO.
• Court: Kentucky Court of Appeals

79 S.W. 767

117 Ky. 855

STEVENSON'S ADM'R v. ILLINOIS CENT. R. CO.

Court of Appeals of Kentucky.

March 15, 1904

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by Lucy Stevenson's administrator against the Illinois Central Railroad Company and others. From a judgment of dismissal, plaintiff appeals. Reversed.

Taylor & Lucas, for appellant.

Wheeler & Hughes and Pirtle, Trabue, Doolen & Cox, for appellees.

BURNAM C.J.

On the 6th of August, 1902, Lucy Stevenson was killed by a railroad train upon the tracks of the Illinois Central Railroad Company, and thereafter, on the 10th of October, 1902, her administrator instituted an action in the McCracken circuit court against the Illinois Central Railroad Company, Robert Bean, the engineer of the train, and A. T. Cole, the conductor, for damages, alleging that the death of his intestate was attributable to the negligence of Bean and Cole. This suit was removed to the United States Circuit Court, upon the application of the railroad company, on the ground of diverse citizenship. Cole, the conductor, was not before the court. The administrator subsequently dismissed the suit without prejudice. Subsequently, on the 20th of November, 1902, he brought a second action against the same parties in the McCracken circuit court upon the same cause of action. The railroad company and Robert Bean again filed their petition and bond, asking a transfer of the case to the federal court. Plaintiff objected to the order of transfer to the federal court, which was overruled. The defendants in that case filed a transcript of the record in the United States court at Paducah, and the plaintiffs appeared in that court and made a motion to have the case remanded to the state court, which was overruled. The defendants thereupon filed their answer to the petition in the federal court which, upon the motion of plaintiff, was controverted of record. Subsequently this action was dismissed without prejudice on the motion of plaintiff. Plaintiff also prosecuted an appeal to this court from the judgment of the McCracken circuit court, and it was decided upon that appeal that the order of removal to the federal court was improperly made, because there was no denial of the overment that one of the defendants (Cole) was a resident of the state of Kentucky, but that this error was waived by plaintiff going into the federal court and dismissing that action without prejudice, and that, as a consequence thereof, he had no action pending in either court. But the opinion in that case states that the plaintiff could bring another suit upon the same cause of action in the state court, if not barred by the lapse of time. See Stephenson's Adm'r v. Illinois Central R. Co. (Ky.) 75 S.W. 260. On the 23d of July 1903, and within one year after the accrual of his cause of action, the administrator of Lucy Stevenson brought this action against the Illinois Central Railroad Company and A T. Cole, Robert Bean, and Roy Christian, who, it is alleged were respectively the conductor, engineer, and fireman of the train which killed his intestate, and to whose negligence her death was attributable. He also makes additional allegations of negligence to those relied on in the former suits. The railroad company again filed its petition and bond for a removal of the action to the United States court for the Western District of Kentucky, and also filed a special plea to the jurisdiction of the McCracken circuit court; relying upon the facts recited supra in bar of plaintiff's right to prosecute the suit. To this plea of jurisdiction the plaintiff filed a general demurrer, which was overruled, the plea sustained, and action dismissed; and to reverse that judgment this appeal is prosecuted.

It is the contention of appellee that, the federal court having acquired jurisdiction of the cause of action upon the former removals, it was exclusive and continuous, and no suit could...