Davis' Admr. v. Chesapeake & O. Ry. Co.

75 S.W. 275, 116 Ky. 144, 1903 Ky. LEXIS 180

Opinion

On rehearing — Rehearing granted and Mm opinion withdrawn. Opinion of the court by

JUDGE PAYNTER

Affirming.

This is an action to recover damages for the loss of the-life of the intestate by tbe alleged negligence of the Chesapeake & Ohio Eailway Company. It presented its petition and asked for the' removal of the case to the federal court, and the motion was sustained. Owing to our duplex system of government, perplexing and delicate questions as to the respective jurisdiction of the federal and State courts arise; and the judiciary should meet and dispose of them with fairness and in the orderly manner which should characterize the proceedings of courts of justice. It will not be our purpose to discuss the questions considered by the Supreme Court of the United States, but to state its conclusions and follow them, as that court has jurisdiction, to adjudicate the questions involved.

Section 1, art. 3, of the Constitution of the United States provides that “the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.” Section 2 of the same article provides that, “the-judicial power shall extend to all cases in law and equity, arising under this Constitution, ... to controversies . . . between citizens of different States.” When a case decided by a supreme court of a State involves the question of diverse citizenship the Supreme Court of the United States has held in many cases that it will review the judgments of those courts on the question. That court having adjudged the precise question here involved, and adversely to the view of this court, expressed in the former opinion delivered herein, we feel that the petition for a rehearing should be granted,' and the opinion withdrawn, which is done.

he appellant is a citizen of Kentucky. It is substantially averred in the petition that the Chesapeake & Ohio Railway Company is a corporation organized under the laws of Virginia, and became a corporation, citizen, and resident of this State by filing in the office of the Secretary of State and in the office of the Railroad Commission, pursuant to section 211 of the Constitution and section 841 of Kentucky Statutes of 1899 copies of its articles of incorporation. The Chesapeake & Ohio Railway Company is a Virginia corporation. It complied with section 841 Ky. St 1899, which reads as follows: “No company, association or corporation created by, or organized under, the laws or authority of any State or country other than this State, shall possess, control, maintain or operate any railway, or part thereof, in this State until, by incorporation under the laws of this State the same shall have become a corporation, citizen and resident of this State. Any such company, association or corporation may, for the purpose of possessing, controlling, maintaining, or operating a railway or part thereof in this State, become a corporation, citizen and resident of this State by being incorporated in the manner following’ namely: By filing in the office of the Secretary of State, and in the office of the Railroad Commission, a copy of the charter or articles of incorporation of such company, association or corporation, authenticated by its seal and by the attesta tion of its president and secretary, and thereupon, and by virtue thereof, such company, association or corporation shall at once become and be a corporation, citizen and res-' ident of this State. The Secretary of State shall issue to such corporation a certificate of such incorporation,” This section of the statute was based upon section 211 of the Constitution of the State, which reads as follows: “No railroad corporation organized under the laws of any other State, or of the United' States, and doing business, or proposing to do business, in this State, shall be entitled to the benefit of the right of eminent domain or have power to acquire the right of way or real estate for depot or other uses, until it shall have become a body corporate pursuant to and in accordance with the laws of this Commonwealth.” When the Chesapeake & Ohio Railway Company complied with the terms of this section of the statute, it at once became “a corporation, citizen and resident of this State,” for it is therein so provided.

But the question then arises whether it remained a citizen of the State where it was organized in the meaning of section 2, art. 3, of the Constitution of the United States. In Bank v. Deveaux, 5 Cranch, 86, 3 L. Ed., 38, Chief Justice Marshall said: “That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently can not sue or be sued in the courts of the United States, unless the. rights of members in this respect can be exercised in their corporate capacity.” In Covington Drawbridge Co. v. Shepherd, 20 How., 227, 15 L. Ed., 896, it was said: “No one, we presume, ever supposed that the artificial being,created by an act of incorporation, could be a citizen of a State in the sense in which that word is used in the Constitution of the United States.” In Muller v. Dows, 94 , 24 L. Ed., 207, the court said: “A corporation itself can be a citizen of no State, in the sense in which the word ‘citizen’ is used in the Constitution of the United States. A suit may be brought in the federal courts by or against a corporation, but in' such a case it is regarded as a suit brought by or against the stockholders of the corporation ; and for the pupose of jurisdiction it is conclusively presumed that all the stockholders are citizens of the State which by its laws created the corporation.” At first the Supreme Court held that, in order to give federal courts jurisdiction of an action by or against corporations, it was necessary to aver citizenship of the incorporators. Subsequently it held that the individuals composing a corporation were conclusively presumed to be citizens of the State creating the corporation.

There is no averment in the petition that the individuals composing the Chesapeake & Ohio Railway Company were associated together for the purpose of organizing a corporation of the same name in this State.__.The corporation which they organized in another State is, by an act of the General Assembly, declared to be a citizen and corporation of Kentucky, by reason of its compliance with certain constitutional and statutory regulations. In St. Louis R. Co. v. James, 161 U. S., 545, 16 Sup. Ct., 621, 40 L. Ed., 802, it appeared that the St. Louis Railroad Company had been incorporated by the State of Missouri, and had subsequently filed its articles of incorporation with the Secretary of State of- the State of Arkansas, under a statute like the one under consideration. A citizen of Missouri sued it in Arkansas, alleging it was a citizen of Arkansas. The court held that it was not a citizen of Arkansas, and was entitled to have its case removed to the federal court. The precise question involved in this case was decided in Walters v. Chicago R. Co., 186 U. S., 479, 22 Sup. Ct., 941, 47 L. Ed., —, the court holding that the case should be removed to the federal court; and as authority for the decision cited St. Louis R. Co. v. James, and Louisville R. Co. v. Louisville Trust Co., 174 U. S., 552, 19 Sup. Ct., 817, 43 L. Ed., 1081. On November 3, 1902, the same court, in Calvert, Administrator, v. Southern Railway Co., 23 Sup. Ct., —, 47 L. Ed., —, decided the same question here involved and in the Walters case, and ruled the same way it did in the latter case. Southern Railway Company v. Allison, 23 Sup. Ct., 713, 47 L. Ed., —, decided May 18, 1903, by the Supreme Court, involved precisely the same question we have under consideration. The Southern Railway Company, a’Virginia corporation, accepted the provisions of the statute of North Carolina, which is similar to our statute. The question was whether it was by virtue thereof a citizen of North Carolina, and thereby lost its citizenship of Virginia, in the meaning of the federal Constitution; and the court held that it had not, and that it was entitled to have the action removed to the federal court. In that case the1 court reviewed the cases to which attention has been called, and held them to be authority for its conclusion. The court also said it had “read with respectful consideration” the case of Debnam v. Southern Bell Telephone Co., 126 N. C., 831, 36 S. E., 269, in which the Supreme Court of that State reached the same conclusion that this court reached in the opinion which has been withdrawn, but it said it could not concur therewith. The Debnam case was cited in the withdrawn opinion as authority therefor.

After the petition for removal had been filed, the appellant tendered an amended petition, making, the.. Maysville & Big Sandy Railroad Company, a domestic corporation and appellee’s lessor, a defendant. It came too late to prevent a removal of the icase. Therefore it was not within the rule of the McCabe case (112 Ky., 861, 23 R., 2328), 66 S. W., 1054, and Person v. Illinois Central Railroad Co. (C. C.), 118 Fed., 342.

Before the petition for removal was filed, the plaintiff filed'an amended petition, making Bracken, Lewis, and Inskip defendants, who were the conductor, engineer and fireman, respectively, and who are alleged to have been in charge of the train when the accident happened. A recovery is sought against them, as well as the Chesapeake & Ohio Railway Company.

It is alleged that the intestate was run over and killed “at or near” a private crossing over the railroad track between her house and garden; that it was “not far” from public crossings to the east and west of her. The alleged negligent acts are that the train ran over the crossing at the rate of 50 miles per hour, which was a dangerous speed; that they failed to keep a lookout for travelers upon or at the crossing; that they failed to give signals of the approach of the train to the crossing. These are the acts of negligence averred in the petition. The averment that she was killed “at or near” the private crossing should be construed that she was killed at a place on the track other-than the crossing, because pleadings are to be construed most strongly against the pleader. A failure to slacken the speed of the train, or to give signals at the approach to private crossings, is not negligence. Louisville & Nashville R. R. Co. v. Survant (19 R, 1576), 44 S. W., 88; Johnson’s Adm’r v. Louisville & Nashville R. R. Co., 91 Ky., 651, 10 R., 227, 25 S. W., 754. It is only where the crossing is a public -one that reckless speed or the failure to give signals amounts to negligence of the railroad company. Louisville & Nashville R. R. Co. v. Survant, 96 Ky., , 16 R., 515, 27 S. W., 999. In Louisville & Nashville R. R. Co. v. Bodine (23 R., 117), 59 S. W., 712, 56 L. R. A., 506, it appeared that the party had been injured at a private crossing, and in considering the question of negligence, the court said: “In this case, in view of the dangerous character of the crossing, its long use, not only by Bodine, but by the public, the fact that signals were accustomed to be given by the trains as they approached it, the speed of this train, ian:d the fact that it was a special, imposed upon the appellant the obligation to give such warning of its approach to this grossing as exigencies of the situation demanded for the protection of human life; and, as no warning at all was given, we think the jury were warranted in concluding that proper precaution was not exercised by appellant, and that by reason of this the accident occurred.”

The rule there stated does not change the general rule announced in Johnson’s Adm’r v. Louisville & Nashville R. R. Co., but simply recognizes an exception to it. The facts averred do not bring the case within the rule of Louisville & Nashville R. R. Co. v. Bodine. Neither do they bring it within the rule of the Cahill case, 92 Ky., 345, 13 R., 714, 18 S. W., 2, if for no other reason than there is no averment that the signals usually given on the approach of trains to the public crossings referred to could have been heard at the private crossing, the distance between the. public and private crossings not being given, so the court could infer that a signal given at the public crossing could have been heard at the private crossing. The averment that the public crossings were near the private one is not sufficient because what in the estimate of the pleader was near might be too far for the signal to be heard at the private crossing.

From the averments the court concludes that the intes tate had the right to use ithe private crossing. But, under the rule that a pleading must be construed most strongly against the pleader, the averment that she was killed “at of near?’ the crossing is equivalent to the averment that .she was not killed on it, but near the crossing; hence she was a trespasser. This being true, under the well-settled rule of this court, those, in charge of the train owed her1 no duty, except to use reasonable oare to save her after discovering her peril. As she was not on a crossing when-killed, it Can not be claimed that, as 'to the intestate, it was negligence to fail to give signals on the approach to either the private or public crossing. In Shackleford’s Adm’r v. Louisville & Nashville R. R. Co., 84 Ky., 43, 7 R., 729, the court said: “Railroad trains must give the customary signals at public places or public crossings. The failure to do so is negligence; but this is required for the safety 'of passengers, trainmen and the public' using, and who have the right to use, the track at such.public ways, and not for the purpose of protecting those who, as trespassers, may be crossing or using the track elsewhere. The instances are numberless upon every railroad of persons living along it, and having to and being in the habit of crossing the track to pass from the dwelling to the outbuildings, or vice versa; and to require the companies in all such cases to signal the approach of their trains, and to presume and guard against the presence of persons upon the track, would not only be unreasonable, but detrimental to public travel.”

If the plaintiff desires to join as defendants persons who are claimed to be Jointly liable for the tort with the railroad company, which is a foreign corporation, and thus prevent a removal of the case to the federal court, a cause of action must be stated against the parties so joined. Our •conclusion is that the amended petition did not state a cause of action against Bracken, Lewis, and Inskip.

The judgment is affirmed.

Judge Nunn dissents from so much, uí the opinion as recognizes that a foreign corporation is entitled to have its case removed to fhe federal court, after complying with section 841 of the Kentucky Statutes of 1899.

■Whole court sitting.

Petition for rehearing by appellant overruled.

For former opinion, see 24 R., 1125, 70 S. W., 857.