Erie Railroad Company v. Tompkins/Dissent Butler
Mr. Justice BUTLER (dissenting).

The case presented by the evidence is a simple one. Plaintiff was severely injured in Pennsylvania. While walking on defendant's right of way along a much-used path at the end of the cross-ties of its main track, he came into collision with an open door swinging from the side of a car in a train going in the opposite direction. Having been warned by whistle and headlight, he saw the locomotive approaching and had time and space enough to step aside and so avoid danger. To justify his failure to get out of the way, he says that upon many other occasions he had safely walked there while trains passed.

Invoking jurisdiction on the ground of diversity of citizenship, plaintiff, a citizen and resident of Pennsylvania, brought this suit to recover damages against defendant, a New York corporation, in the federal court for the Southern District of that state. The issues were whether negligence of defendant was a proximate cause of his injuries, and whether negligence of plaintiff contributed. He claimed that, by hauling the car with the open door, defendant violated a duty to him. The defendant insisted that it violated no duty, and that plaintiff's injuries were caused by his own negligence. The jury gave him a verdict on which the trial court entered judgment; the Circuit Court of Appeals affirmed. 2 Cir., 90 F.2d 603.

Defendant maintained, citing Falchetti v. Pennsylvania R. Co., 307 Pa. 203, 160 A. 859, and Koontz v. Baltimore & O.R. Co., 309 Pa. 122, 163 A. 212, that the only duty owed plaintiff was to refrain from willfully or wantonly injuring him; it argued that the courts of Pennsylvania had so ruled with respect to persons using a customary longitudinal path, as distinguished from one crossing the track. The plaintiff insisted that the Pennsylvania decisions did not establish the rule for which the defendant contended. Upon that issue the Circuit Court of Appeals said (90 F.2d 603, et page 604): 'We need not go into this matter since the defendant concedes that the great weight of authority in other states is to the contrary. This concession is fatal to its contention, for upon questions of general law the federal courts are free, in absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law.' Upon that basis the court held the evidence sufficient to sustain a finding that plaintiff's injuries were caused by the negligence of defendant. It also held the question of contributory negligence one for the jury.

Defendant's petition for writ of certiorari presented two questions: Whether its duty toward plaintiff should have been determined in accordance with the law as found by the highest court of Pennsylvania, and whether the evidence conclusively showed plaintiff guilty of contributory negligence. Plaintiff contends that, as always heretofore held by this Court, the issues of negligence and contributory negligence are to be determined by general law against which local decisions may not be held conclusive; that defendant relies on a solitary Pennsylvania case of doubtful applicability, and that, even if the decisions of the courts of that state were deemed controlling, the same result would have to be reached.

No constitutional question was suggested or argued below or here. And as a general rule, this Court will not consider any question not raised below and presented by the petition. Olson v. United States, 292 U.S. 246, 262, 54 S.Ct. 704, 711, 78 L.Ed. 1236; Johnson v. Manhattan Ry. Co., 289 U.S. 479, 494, 53 S.Ct. 721, 726, 77 L.Ed. 1331; Gunning v. Cooley, 281 U.S. 90, 98, 50 S.Ct. 231, 234, 74 L.Ed. 720. Here it does not decide either of the questions presented, but, changing the rule of decision in force since the foundation of the government, remands the case to be adjudged according to a standard never before deemed permissible.

The opinion just announced states that: 'The question for decision is whether the oft-challenged doctrine of Swift v. Tyson (1842, 16 Pet. 1, 10 L.Ed. 865) shall now be disapproved.'

That case involved the construction of the Judiciary Act of 1789, § 34, 28 U.S.C.A. § 725: 'The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.' Expressing the view of all the members of the Court, Mr. Justice Story said (16 Pet. 1, at page 18, 10 L.Ed. 865): 'In the ordinary use of language, it will hardly be contended, that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often reexamined, reversed, and qualified by courts themselves, whenever they are found to be either defective, or illfounded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this court have uniformly supposed, that the true interpretation of the 34th section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules or conclusive authority, by which our own judgments are to be bound up and governed.' (Italics added.)

The doctrine of that case has been followed by this Court in an unbroken line of decisions. So far as appears, it was not questioned until more than 50 years later, and then by a single judge.  Baltimore & O. Railroad Co. v. Baugh, 149 U.S. 368, 390, 13 S.Ct. 914, 37 L.Ed. 772. In that case, Mr. Justice Brewer, speaking for the Court, truly said (149 U.S. 368, at page 373, 13 S.Ct. 914, 916, 37 L.Ed. 772): 'Whatever differences of opinion may have been expressed have not been on the question whether a matter of general law should be settled by the independent judgment of this court, rather than through an adherence to the decisions of the state courts, but upon the other question, whether a given matter is one of local or of general law.'

And since that decision, the division of opinion in this Court has been of the same character as it was before. In 1910, Mr. Justice Holmes, speaking for himself and two other Justices, dissented from the holding that a court of the United States was bound to exercise its own independent judgment in the construction of a conveyance made before the state courts had rendered an authoritative decision as to its meaning and effect. Kuhn v. Fairmont Coal Co., 215 U.S. 349, 30 S.Ct. 140, 54 L.Ed. 228. But that dissent accepted (215 U.S. 349, at page 371, 30 S.Ct. 140, 54 L.Ed. 228) as 'settled' the doctrine of Swift v. Tyson, and insisted (215 U.S. 349, at page 372, 30 S.Ct. 140, 54 L.Ed. 228) merely that the case under consideration was by nature and necessity peculiarly local.

Thereafter, as before, the doctrine was constantly applied.  In Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681, 57 A.L.R. 426, three judges dissented. The writer of the dissent, Mr. Justice Holmes said, however (276 U.S. 518, at page 535, 48 S.Ct. 404, 409, 72 L.Ed. 681, 57 A.L.R. 426): 'I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields.'

No more unqualified application of the doctrine can be found than in decisions of this Court speaking through Mr. Justice Holmes. United Zinc Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28; Baltimore & O.R.R. Co. v. Goodman, 275 U.S. 66, 70, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A.L.R. 645. Without in the slightest departing from that doctrine, but implicitly applying it, the strictness of the rule laid down in the Goodman Case was somewhat ameliorated by Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049.

Whenever possible, consistently with standards sustained by reason and authority constituting the general law, this Court has followed applicable decisions of state courts. Mutual Life Co. v. Johnson, 293 U.S. 335, 339, 55 S.Ct. 154, 156, 79 L.Ed. 398. See Burgess v. Seligman, 107 U.S. 20, 34 2 S.Ct. 10, 27 L.Ed. 359; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., supra, 276 U.S. 518, at page 530, 48 S.Ct. 404, 407, 72 L.Ed. 681, 57 A.L.R. 426. Unquestionably, the determination of the issues of negligence and contributory negligence upon which decision of this case depends are questions of general law. Hough v. Texas Railway Co., 100 U.S. 213, 226, 25 L.Ed. 612; Lake Shore Railway Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97; Baltimore & O. Railroad Co. v. Baugh, supra; Gardner v. Michigan Central Railroad Co., 150 U.S. 349, 358, 14 S.Ct. 140, 37 L.Ed. 1107; Central Vermont Ry. Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252; Baltimore & O.R.R. Co. v. Goodman, supra; Pokora v. Wabash Ry. Co., supra.

While amendments to section 34 have from time to time been suggested, the section stands as originally enacted. Evidently Congress has intended throughout the years that the rule of decision as construed should continue to govern federal courts in trials at common law. The opinion just announced suggests that Mr. Warren's research has established that from the beginning this Court has erroneously construed section 34. But that author's 'New Light on the History of the Federal Judiciary Act of 1789' does not purport to be authoritative, and was intended to be no more than suggestive. The weight to be given to his discovery has never been discussed at this bar. Nor does the opinion indicate the ground disclosed by the research. In his dissenting opinion in the Taxicab Case, Mr. Justice Holmes referred to Mr. Warren's work, but failed to persuade the Court that 'laws' as used in section 34 included varying and possibly ill-considered rulings by the courts of a state on questions of common law. See, e.g., Swift v. Tyson, supra, 16 Pet. 1, 16, 17, 10 L.Ed. 865. It well may be that, if the Court should now call for argument of counsel on the basis of Mr. Warren's research, it would adhere to the construction it has always put upon section 34. Indeed, the opinion in this case so indicates. For it declares: 'If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so.' This means that, so far as concerns the rule of decision now condemned, the Judiciary Act of 1789, passed to establish judicial courts to exert the judicial power of the United States, and especially section 34 of that act as construed, is unconstitutional; that federal courts are now bound to follow decisions of the courts of the state in which the controversies arise; and that Congress is powerless otherwise to ordain. It is hard to foresee the consequences of the radical change so made. Our opinion in the Taxicab Case cites numerous decisions of this Court which serve in part to indicate the field from which it is now intended forever to bar the federal courts. It extends to all matters of contracts and torts not positively governed by state enactments. Counsel searching for precedent and reasoning to disclose common-law principles on which to guide clients and conduct litigation are by this decision told that as to all of these questions the decisions of this Court and other federal courts are no longer anywhere authoritative.

This Court has often emphasized its reluctance to consider constitutional questions and that legislation will not be held invalid as repugnant to the fundamental law if the case may be decided upon any other ground. In view of grave consequences liable to result from erroneous exertion of its power to set aside legislation, the Court should move cautiously, seek assistance of counsel, act only after ample deliberation, show that the question is before the Court, that its decision cannot be avoided by construction of the statute assailed or otherwise, indicate precisely the principle or provision of the Constitutional held to have been transgressed, and fully disclose the reasons and authorities found to warrant the conclusion of invalidity. These safeguards against the improvident use of the great power to invalidate legislation are so well-grounded and familiar that statement of reasons or citation of authority to support them is no longer necessary. But see, e.g., Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773; Township of Pine Grove v. Talcott, 19 Wall. 666, 673, 22 L.Ed. 227; Chicago, etc., Railway Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176; Baker v. Grice, 169 U.S. 284, 292, 18 S.Ct. 323, 42 L.Ed. 748; Martin v. District of Columbia, 205 U.S. 135, 140, 27 S.Ct. 440, 51 L.Ed. 743.

So far as appears, no litigant has ever challenged the power of Congress to establish the rule as construed. It has so long endured that its destruction now without appropriate deliberation cannot be justified. There is nothing in the opinion to suggest that consideration of any constitutional question is necessary to a decision of the case. By way of reasoning, it contains nothing that requires the conclusion reached. Admittedly, there is no authority to support that conclusion. Against the protest of those joining in this opinion, the Court declines to assign the case for reargument. It may not justly be assumed that the labor and argument of counsel for the parties would not disclose the right conclusion and aid the Court in the statement of reasons to support it. Indeed, it would have been appropriate to give Congress opportunity to be heard before devesting it of power to prescribe rules of decision to be followed in the courts of the United States. See Myers v. United States, 272 U.S. 52, 176, 47 S.Ct. 21, 45, 71 L.Ed. 160.

The course pursued by the Court in this case is repugnant to the Act of Congress of August 24, 1937, 50 Stat. 751, 28 U.S.C.A. §§ 17 and note, 349a, 380a and note, 401. It declares that: 'Whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question in any court of the United States in any suit or proceeding to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, the court having jurisdiction of the suit or proceeding shall certify such fact to the Attorney General. In any such case the court shall permit the United States to intervene and become a party for presentation of evidence (if evidence is otherwise receivable in such suit or proceeding) and argument upon the question of the constitutionality of such Act. In any such suit or proceeding the United States shall, subject to the applicable provisions of law, have all the rights of a party and the liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the constitutionality of such Act.' Section 1, 28 U.S.C.A. § 401. That provision extends to this Court. Section 5, 28 U.S.C.A. § 380a note. If defendant had applied for and obtained the writ of certiorari upon the claim that, as now held, Congress has no power to prescribe the rule of decision, section 34 as construed, it would have been the duty of this Court to issue the prescribed certificate to the Attorney General in order that the United States might intervene and be heard on the constitutional question. Within the purpose of the statute and its true intent and meaning, the constitutionality of that measure has been 'drawn in question.' Congress intended to give the United States the right to be heard in every case involving constitutionality of an act affecting the public interest. In view of the rule that, in the absence of challenge of constitutionality, statutes will not here be invalidated on that ground, the Act of August 24, 1937 extends to cases where constitutionality is first 'drawn in question' by the Court. No extraordinary or unusual action by the Court after submission of the cause should be permitted to frustrate the wholesome purpose of that act. The duty it imposes ought here to be willingly assumed. If it were doubtful whether this case is within the scope of the act, the Court should give the United States opportunity to intervene and, if so advised, to present argument on the constitutional question, for undoubtedly it is one of great public importance. That would be to construe the act according to its meaning.

The Court's opinion in its first sentence defines the question to be whether the doctrine of Swift v. Tyson shall now be disapproved; it recites (third page, 58 S.Ct. 819) that Congress is without power to prescribe rules of decision that have been followed by federal courts as a result of the construction of section 34 in Swift v. Tyson and since; after discussion, it declares (seventh page, 58 S.Ct. 822) that 'the unconstitutionality of the course pursued (meaning the rule of decision resulting from that construction) * * * compels' abandonment of the doctrine so long applied; and then near the end of the last page, 58 S.Ct. 823, the Court states that it does not hold section 34 unconstitutional, but merely that, in applying the doctrine of Swift v. Tyson construing it, this Court and the lower courts have invaded rights which are reserved by the Constitution to the several states. But, plainly through the form of words employed, the substance of the decision appears; it strikes down as unconstitutional section 34 as construed by our decisions; it divests the Congress of power to prescribe rules to be followed by federal courts when deciding questions of general law. In that broad field it compels this and the lower federal courts to follow decisions of the courts of a particular state.

I am of opinion that the constitutional validity of the rule need not be considered, because under the law, as found by the courts of Pennsylvania and generally throughout the country, it is plain that the evidence required a finding that plaintiff was guilty of negligence that contributed to cause his injuries, and that the judgment below should be reversed upon that ground.

Mr. Justice McREYNOLDS, concurs in this opinion.

Notes