US SUPREME COURT DECISIONS

Where the right of removal depends upon the existence of a separable controversy, the question is to be determined by the condition of the record in the state court at the time of the filing of the petition to remove.

In an action of tort, the cause of action is whatever the plaintiff declares it to be in his pleading, and matters of defense cannot be availed of as ground of removal.

When concurrent negligence is charged, the controversy is not separable, and as the complaint in this case, reasonably construed, charged concurrent negligence, the court declines to hold that the state courts erred in retaining jurisdiction.

October 19, 1894, Lucy Dixon, as administratrix of Alexander Dixon, brought her action against the Chesapeake & Ohio Railway Company, R. H. Chalkey, and William Sidles in the Circuit Court of Boyd County, Kentucky, by petition, which alleged:

"That Alexander Dixon departed this life intestate on 22d day of September, 1894, while a resident of and domiciled in Boyd County, Kentucky; that, by an order of the Boyd County Court made and entered on the ___ day of September, 1894, plaintiff was appointed administratrix of his estate, and gave bond and duly qualified, and is now acting as the administratrix of the said estate. A copy of said order is filed herewith as part hereof, marked 'A.'"

"She says that the defendant the Chesapeake & Ohio Railway Company is and at the time hereinafter stated was a corporation and common carrier of freight and passengers for hire, and said defendant, by its locomotives, cars, and other appurtenances, now operates and at the times hereinafter stated, operated lines of railway extending into the County of Boyd and State of Kentucky. She says that, on the 22d day of September,

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1894, while crossing the track of the defendant at the crossing of the Ashland & Catlettsburg Turnpike road and within the corporate limits of said town, the said intestate, Alexander Dixon, was by the negligence of the defendant, the Chesapeake & Ohio Railway Company, and of its agents and servants, R. H. Chalkey and Wm. Sidles, who were in charge thereof, run over and instantly killed by one of defendant's passenger trains while on its way from Catlettsburg to Ashland, Boyd County, Kentucky, whereby she had been damaged in the sum of $30,000."

"At the time and place when and where plaintiff's intestate was injured as aforesaid, the defendants R. H, Chalkey and Wm. Sidles were, and for a long time theretofore had been, servants of the corporate defendants in charge and control of said train, and then and there were, and for a long time theretofore had continuously been, respectively, engineer and fireman of said train, and said negligence of the corporate defendant was done by and through its said servants and other of its servants then and there in its employment, and said negligence was the joint negligence of all the defendants."

On the 30th of January, 1895, the railway company filed its petition for the removal of the cause to the Circuit Court of the United States for the District of Kentucky, and tendered therewith a bond as required by law.

The petition read as follows:

"Your petitioner, Chesapeake & Ohio Railway Company, respectfully shows that it is one of the defendants in the above-entitled suit, and that the matter and amount in dispute in the said suit, exclusive of interest and cost, exceeds the sum or value of $2,000."

"Your petitioner further shows that the said suit is of a civil nature, and that there is in said suit a controversy which is wholly between citizens of different states, and which can be fully determined as between them, to-wit, a controversy between your said petitioner, the Chesapeake & Ohio Railway Company, who avers that it was at the time of the bringing of this suit and still is a corporation created, organized, and existing under and by virtue of the laws of the State of Virginia

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and a citizen of the said State of Virginia, and the said plaintiff, Lucy Dixon, administratrix of Alexander Dixon, who, your petitioner avers, was then and still is a citizen of the State of Kentucky; that the said controversy is of the following nature, viz.:"

"Whether your petitioner is liable to the said plaintiff for damages on account of the death of said intestate, alleged to have been caused by the negligence of certain of its servants therein named and made defendants thereto, and other of its servants then and there in its employment and who are not named, it being claimed by said plaintiff that, because thereof, your petitioner is liable in damages to her, and that your petitioner and the said plaintiff are both actually interested in said controversy."

"Your petitioner further states that the defendants R. H. Chalkey and William Sidles are neither necessary nor proper parties defendant to this cause, and that they were made parties defendant to this cause for the sole and single purpose to prevent a removal by petitioner of this cause to the Circuit Court of the United States for the District of Kentucky, and thereby unlawfully to deprive your petitioner of the right conferred upon it by the Constitution and laws of the United States."

The Boyd Circuit Court adjudged the bond sufficient, but overruled the petition.

Separate answers by the company and by Chalkey and Sidles were thereupon filed, and issue joined thereon, trial was had, resulting in a verdict and judgment in favor of plaintiff, and the judgment was affirmed on appeal by the Court of Appeals of Kentucky. 47 S.W. 615.

In the opinion of that court it was said, among other things:

"The main ground for reversal is the refusal of the lower court to sustain the petition of the appellant the Chesapeake & Ohio Railroad Company for a transfer of this case to the United States court for the district of Kentucky."

"The ground upon which the transfer was sought, as alleged in the petition asking it, is that the action is wholly between citizens of different states, the Chesapeake and Ohio Railroad Company being a corporation created under the laws of the

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State of Virginia, and a citizen thereof, while appellee, Lucy Dixon, is and was a citizen of the State of Kentucky. As appellants Chalkey and Sidles were, when this action was commenced, citizens of Kentucky, the Boyd Circuit Court had jurisdiction of the persons of all the defendants, as well as of the subject of the action, if the defendants were jointly guilty of the negligence alleged to have been the cause of the death of Alexander Dixon, and jointly liable therefor."

"It is alleged by appellee in her petition, and, so far from the contrary being shown by appellant the Chesapeake & Ohio Railroad Company, is clearly proved by the evidence in this case, that appellants Chalkey and Sidles, as engineer and fireman of said train, were guilty of the negligence causing said death, and that the Chesapeake & Ohio Railroad Company, through its said employees, was also guilty of said negligence, and therefore they were jointly liable for the destruction of the life of said Dixon, caused thereby."

"It is not material that, as alleged in the petition for a transfer of this case, Chalkey and Sidles were made parties defendant for the single purpose of preventing the removal of the case by the Chesapeake & Ohio Railroad Company to the Circuit Court of the United States for the District of Kentucky, or what may have been the motive of the plaintiff for bringing a joint action, unless they were wrongfully and illegally joined, and such is the doctrine as settled by the Supreme Court of the United States."

"As, therefore, the appellant Chesapeake & Ohio Railroad Company neither sufficiently alleged not attempted to prove that the defendants were wrongfully joined as such, the lower court properly refused to make the transfer. "

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