Chesapeake & Ohio Railway Company v. Cockrell/Opinion of the Court
This was an action begun in the circuit court of Clark county, Kentucky, by an administrator, to recover damages for the death of his intestate, the defendants being a railway company and the engineer and fireman of one of its trains which struck and fatally injured the intestate at or near a public crossing in Winchester, Kentucky. The administrator, engineer, and fireman were citizens of Kentucky, and the railway company was a Virginia corporation. The latter in due time presented to the court a verified petition and proper bond for the removal of the cause into the circuit court of the United States, but the court declined to surrender its jurisdiction, and, over the company's protest, proceeded to a trial which resulted in a judgment against the company, and the court of appeals of the state affirmed the judgment, including the ruling upon the petition for removal. 144 Ky. 137, 137 S. W. 1066.

The sole question for decision here is, whether it was error thus to proceed to an adjudication of the cause notwithstanding the company's effort to remove it into the Federal court.

Rightly understood and much abbreviated, the plaintiff's petition, after stating that the train was being operated by the engineer and fireman as employees of the railway company, charged that the injury and death of the intestate were caused by the negligence of the defendants (a) in failing to maintain an adequate lookout ahead of the engine, (b) in failing to maintain any lookout upon the left or fireman's side, from which the intestate went upon the track, (c) in failing to give any warning of the approach of the train, and (d) in continuing to run the train forward after it struck the intestate, and was pushing her along, until it eventually ran over and fatally injured her, when it easily could have been stopped in time to avoid material injury. There was a prayer for a judgment against the three defendants for $25,000, the amount of damages alleged.

The railway company's petition for removal, while not denying that the engineer and fireman were in the employ of the company, or that they were operating the train when it struck and injured the intestate, did allege that the charges of negligence (all being specifically repeated) against the defendants were each and all 'false and untrue, and were known by the plaintiff, or could have been known by the exercise of ordinary diligence, to be false and untrue, and were made for the sole and fraudulent purpose of affording a basis, if possible, for the fraudulent joinder' of the engineer and fireman with the railway company, and of 'thereby fraudulently depriving' the latter of its right to have the action removed into the Federal court; and that none of the charges of negligence on the part of the engineer or fireman could be sustained on the trial.

It will be perceived that but for the joinder of the two employees as codefendants with the railway company, the latter undoubtedly would have been entitled to remove the cause into the Federal court on the ground of diverse citizenship, there being the requisite amount in controversy; and that the railway company attempted in the petition for removal to overcome the apparent obstacle arising from the joinder. Whether the petition was sufficient in that regard is the subject of opposing contentions.

The right of removal from a state to a Federal court, as is well understood, exists only in certain enumerated classes of cases. To the exercise of the right, therefore, it is essential that the case be shown to be within one of those classes; and this must be done by a verified petition setting forth, agreeably to the ordinary rules of pleading, the particular facts, not already appearing, out of which the right arises. It is not enough to allege in terms that the case is removable or belongs to one of the enumerated classes, or otherwise to rest the right upon mere legal conclusions. As in other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts, and that, in the event of a removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition. Little York Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 202, 24 L. ed. 656, 658; Carson v. Dunham, 121 U.S. 421, 426, 30 L. ed. 992, 993, 7 Sup. Ct. Rep. 1030; Crehore v. Ohio & M. R. Co. 131 U.S. 240, 244, 33 L. ed. 144, 145, 9 Sup. Ct. Rep. 692; Powers v. Chesapeake & O. R. Co. 169 U.S. 92, 101, 42 L. ed. 673, 676, 18 Sup. Ct. Rep. 264.

A civil case, at law or in equity, presenting a controversy between citizens of different states, and involving the requisite jurisdictional amount, is one which may be removed by the defendant, if not a resident of the state in which the case is brought; and this right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. Louisville & N. R. Co. v. Wangelin, 132 U.S. 599, 601, 33 L. ed. 474, 475, 10 Sup. Ct. Rep. 203; Alabama G. S. R. Co. v. Thompson, 200 U.S. 206, 218, 50 L. ed. 441, 447, 26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147; Wecker v. National Enameling & Stamping Co. 204 U.S. 176, 51 L. ed. 430, 27 Sup. Ct. Rep. 184, 9 Ann. Cas. 757; Illinois C. R. Co. v. Sheegog, 215 U.S. 308, 316, 54 L. ed. 208, 211, 30 Sup. Ct. Rep. 101. So, when in such a case a resident defendant is joined with the nonresident, the joinder, even although fair upon its face, may be shown by a petition for removal to be only a fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly engendering that conclusion. Merely to traverse the allegations upon which the liability of the resident defendant is rested, or to apply the epithet 'fraudulent' to the joinder, will not suffice: the showing must be such as compels the conclusion that the joinder is without right and made in bad faith, as was the case in Wecker v. National Enameling & Stamping Co. 204 U.S. 176, 51 L. ed. 430, 27 Sup. Ct. Rep. 184, 9 Ann. Cas. 757. See Illinois C. R. Co. v. Sheegog, 215 U.S. 308, 316, 54 L. ed. 208, 211, 30 Sup. Ct. Rep. 101; Chicago, R. I. & P. R. Co. v. Dowell, 229 U.S. 102, 114, 57 L. ed. 1090, 1096, 33 Sup. Ct. Rep. 684.

Here the plaintiff's petition, as is expressly conceded, not only stated a good cause of action against the resident defendants, but, tested by the laws of Kentucky, as it should be, stated a case of joint liability on the part of all the defendants. As thus stated the case was not removable, the joinder of the resident defendants being apparently the exercise of a lawful right. And while the plaintiff's statement was not conclusive upon the railway company, it did operate to lay upon the latter, as a condition to a removal, the duty of showing that the joinder of the engineer and fireman was merely a fraudulent device to prevent a removal. Of course, it was not such unless it was without any reasonable basis.

Putting out of view, as must be done, the epithets and mere legal conclusions in the petition for removal, it may have disclosed an absence of good faith on the part of the plaintiff in bringing the action at all, but it did not show a fraudulent joinder of the engineer and fireman. With the allegation that they were operating the train which did the injury standing unchallenged, the showing amounted to nothing more than a traverse of the charges of negligence, with an added statement that they were falsely or recklessly made and could not be proved as to the engineer or fireman. As no negligent act or omission personal to the railway company was charged, and its liability, like that of the two employees, was, in effect, predicated upon the alleged negligence of the latter, the showing manifestly went to the merits of the action as an entirety, and not to the joinder; that is to say, it indicated that the plaintiff's case was ill founded as to all the defendants. Plainly, this was not such a showing as to engender or compel the conclusion that the two employees were wrongfully brought into a controversy which did not concern them. As they admittedly were in charge of the movement of the train, and their negligence was apparently the principal matter in dispute, the plaintiff had the same right, under the laws of Kentucky, to insist upon their presence as real defendants as upon that of the railway company. We conclude, therefore, that the petition for removal was not such as to require the state court to surrender its jurisdiction.

While this conclusion requires an affirmance of the judgment, we would not be understood as approving the reasoning upon which the action of the trial court was sustained by the court of appeals of the state. That court, apparently assuming that the petition for removal contained a sufficient showing of a fraudulent joinder, held that the questions of fact arising upon the petition were open to examination and determination in the state court, and that no error was committed in refusing to surrender jurisdiction, because, upon the subsequent trial, the evidence indicated that the showing in the petition was not true as to the fireman. In so holding the court of appeals fell into manifest error, for it is thoroughly settled that issues of fact arising upon a petition for removal are to be determined in the Federal court, and that the state court, for the purpose of determining for itself whether it will surrender jurisdiction, must accept as true the allegations of fact in such petition. Stone v. South Carolina, 117 U.S. 430, 432, 29 L. ed. 962, 963, 6 Sup. Ct. Rep. 799; Crehore v. Ohio & M. R. Co. 131 U.S. 240, 244, 33 L. ed. 144, 145, 9 Sup. Ct. Rep. 692; Illinois C. R. Co. v. Sheegog, 215 U.S. 308, 316, 54 L. ed. 208, 211, 30 Sup. Ct. Rep. 101, and Chicago, R. I. & P. R. Co. v. Dowell, 229 U.S. 102, 114, 57 L. ed. 1090, 1096, 33 Sup. Ct. Rep. 684. In this case had the petition contained a sufficient showing of a fraudulent joinder, accompanied as it was by a proper bond, the state court would have been in duty bound to give effect to the petition and surrender jurisdiction, leaving any issue of fact arising upon the petition to the decision of the Federal court, as was done in Wecker v. National Enameling & Stamping Co. 204 U.S. 176, 51 L. ed. 430, 27 Sup. Ct. Rep. 184, 9 Ann. Cas. 757. And had the state court refused to give effect to the petition, it and the bond being sufficient, the railway company might have obtained a certified transcript of the record, resorting, if necessary, to a writ of certiorari for that purpose, and, upon filing the transcript in the Federal court, might have invoked the authority of the latter to protect its jurisdiction by enjoining the plaintiff from taking further proceedings in the state court, unless the cause should be remanded. Madisonville Traction Co. v. St. Bernard Min. Co. 196 U.S. 239, 245, 49 L. ed. 462, 464, 25 Sup. Ct. Rep. 251; Chesapeake & O. R. Co. v. McCabe, 213 U.S. 207, 217, 219, 53 L. ed. 765, 769, 770, 29 Sup. Ct. Rep. 430; Chesapeake & O. R. Co. v. McDonald, 214 U.S. 191, 195, 53 L. ed. 963, 965, 29 Sup. Ct. Rep. 546; French v. Hay (French v. Stewart) 22 Wall. 250, 22 L. ed. 857; Dietzsch v. Huidekoper (Kern v. Huidekoper) 103 U.S. 494, 26 L. ed. 497.

Judgment affirmed. 

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