Messrs. Edmund F. Trabue, John C. Doolan, Attilla Cox, Jr., Blewett Lee, and H. D. Allen for plaintiff in error.
Messrs. John G. Miller, John K. Hendrick, and P. B. Miller for defendant in error.[ Illinois Cent. R. Co. of State of Illinois v. Sheegog 215 U.S. 308 (1909) ]
Mr. Justice Holmes delivered the opinion of the court:
This is a writ of error to reverse a judgment rendered by the court of appeals of Kentucky in favor of the defendant in error, notwithstanding a petition and bond for removal to the circuit court of the United States. 126 Ky. 252, 103 S. W. 323.
The defendant in error brought this action for causing the death of his intestate, John E. Sheegog, by the throwing off the track of a railroad train upon which the deceased was employed as an engineer. The defendants were the conductor of the train, the Illinois Central Railroad Company, which was operating the railroad and owned the train, and the Chicago, St. Louis, & New Orleans Railroad Company, which owned the road and tracks where the accident happened, but which had let the same to the first-mentioned road. It was alleged that through the negligence of both companies the roadbed, track, etc., were in an improper condition; that through the negligence of the Illinois Central the engine and cars were in an improper condition; and that the death was due to these causes acting jointly, the negligence of the Illinois Central in permitting its engine, cars, and road to be operated while in such condition, and the negligence of the conductor in ordering and directing the management of the train.
In due season the Illinois Central Railroad Company, being an Illinois corporation, filed its petition to remove. The difficulty in its way was that the other two defendants were citizens and residents of Kentucky, to which state the plaintiff also belonged. To meet this the petition alleged that the plaintiff had joined these parties as defendants solely for the purpose of preventing the removal. It admitted the lease, and averred that the Illinois Central Company operated the road exclusively, and alone employed the deceased. It went on to allege that the charge of joint negligence against the lessor and lessee in causing the wreck, as stated, was made only for the above purpose, and was fraudulent and knowingly false. [215 U.S. 308, 316] The question is whether these allegations were sufficient to entitle the petitioner to have its suit tried in the Federal court. It may be mentioned here that the jury found for the other two defendants and against the Illinois Central Railroad Company, but that fact has no bearing upon the case. Whitcomb v. Smithson, 175 U.S. 635, 637 , 44 S. L. ed. 303, 304, 20 Sup. Ct. Rep. 248.
Of course, if it appears that the joinder was fraudulent, as alleged, it will not be allowed to prevent the removal. Wecker v. National Enameling & Stamping Co. 204 U.S. 176 , 51 L. ed. 430, 27 Sup. Ct. Rep. 184, 9 A. & E. Ann. Cas. 757. And further, there is no doubt that the allegations of fact, so far as material, in a petition to remove, if controverted, must be tried in the court of the United States, and therefore must be taken to be true when they fail to be considered in the state courts. Crehore v. Ohio & M. R. Co. 131 U.S. 240, 244 , 33 S. L. ed. 144, 145, 9 Sup. Ct. Rep. 692; Chesapeake & O. R. Co. v. McCabe, 213 U.S. 207 , 53 L. ed. 765, 29 Sup. Ct. Rep. 430. On the other hand, the mere epithet 'fraudulent' in a petition does not end the matter. In the case of a tort which gives rise to a joint and several liability, the plaintiff has an absolute right to elect, and to sue the tort feasors jointly if he sees fit, no matter what his motive, and therefore an allegation that the joinder of one of the defendants was fraudulent, without other ground for the charge than that its only purpose was to prevent removal, would be bad on its face. Alabama G. S. R. Co. v. Thompson, 200 U.S. 206 , 50 L. ed. 441, 26 Sup. Ct. Rep. 161, 4 A. & E. Ann. Cas. 1147; Cincinnati, N. O. & T. P. R. Co. v. Bohon, 200 U.S. 221 , 50 L. ed. 448, 26 Sup. Ct. Rep. 166, 4 A. & E. Ann. Cas. 1152. If the legal effect of the declaration in this case is that the Illinois Central Railroad Company was guilty of certain acts and omissions by reason of which a joint liability was imposed upon it and its lessor, the joinder could not be fraudulent in a legal sense on any ground except that the charge against the alleged immediate wrongdoer, the Illinois Central Railroad itself, was fraudulent and false.
We assume, for the purposes of what we have to say, that the allegations concerning the lessor state merely a conclusion of law from the acts and omissions charged against its lessee. Or, if they be taken to be allegations of fact, we [215 U.S. 308, 317] assume, again merely for the purposes of decision, that they are effectively traversed by the petition to remove. The Kentucky court of appeals appears to us to have discussed the case on this footing. Whether it did or not, the question whether a joint liability of lessor and lessee would arise from the acts and omissions of the Illinois Central Railroad Company alone was a question of Kentucky law for it to decide, and it appears to us to have decided it.
We should observe in the first place that the cause of action alleged is not helped, but rather hindered, by the allegation that the deceased was an employee of the Illinois Central Road. The case did not stand on the breach of any duty owed peculiarly to employees, and, on the other hand, was encumbered with the fact that a part of the negligence charged was that of a fellow servant. The plaintiff recovered for a breach of a duty to the public which at best was not released or limited by his intestate's having been in the company's service. Now, whether we agree with it or not, the doctrine is familiar that, in the absence of statute, a railroad company cannot get rid of the liabilities attached to the exercise of its franchise by making a lease. Whatever may be the law as to purely contract relations, to some extent, at least, the duties of the lessor to the public, including that part of the public that travels on the railroad, are held to remain unchanged. In this case the court of appeals, after noting that it does not appear that the lessor was relieved by statute, quotes an earlier Kentucky decision which seemingly adopted the following language of a commentator: 'If it be true, as the decision with substantial unanimity admit, that the lessor railway remains liable for the discharge of its duties to the public unless expressly exempted therefrom by statute, it seems difficult to conceive its absence of liability in any event, except, perhaps, where the plaintiff is suing upon an express contract made with him by the lessee corporation.' McCabe v. Maysville & B. S. R. Co. 112 Ky. 861, 875, 66 S. W. 1054
The court, however, then goes on to refer to a distinction [215 U.S. 308, 318] taken in a later Kentucky case between torts arising from negligent operation and those resulting from the omission of such duties as the proper construction and maintenance of the road (Swice v. Maysville & B. S. R. Co. 116 Ky. 253, 75 S. W. 278), and quotes, with seeming approval, decisions in other states, limiting the liability of the lessor to the latter class. But it then proceeds to show that the recovery in this case is upon a breach of a duty to the public, and that, according to the declaration and the verdict, the injury was due, in part, at least, to the defective condition of the road. It ends by saying: 'The appellee not only had reasonable grounds to believe that the resident corporation was responsible to him, but he had actual grounds to believe it.' We understand the words 'actual grounds' to mean that the belief was correct on the allegations and findings according to Kentucky law. So that, whatever may be the precise line drawn by that court hereafter, it stands decided that in Kentucky the facts alleged and proved against the Illinois Central Railroad in this case made its lessor jointly liable as matter of law. This decision we are bound to respect.
It follows, if our interpretation of the decision is correct, that no allegations were necessary concerning the Chicago, St. Louis, & New Orleans Railroad Company except that it owned and had let the road to its codefendant. The joint liability arising from the fault of the Illinois Central Road gave the plaintiff an absolute option to sue both if he preferred, and no motive could make his choice a fraud. The only way in which fraud could be made out would be by establishing that the allegation of a cause of action against the Illinois Central Railroad was fraudulent, or, at least, any part of it for which its lessor possibly could be held. But it seems to us that to allow that to be done on such a petition as is before us would be going too far in an effort to counteract evasions of Federal jurisdiction. We have assumed, for purposes of decision, that the railroad held on what may be called a secondary ground is to be charged, if at all, only as [215 U.S. 308, 319] a consequence of the liability of its lessee. But when we come to the principal and necessary defendant, a man is not to be prevented from trying his case before that tribunal that has sole jurisdiction, if his declaration is true, by a mere allegation that it is fraudulent and false. The jury alone can determine that issue, unless something more appears than a naked denial. Louisville & N. R. Co. v. Wangelin, 132 U.S. 599, 603 , 33 S. L. ed. 474, 476, 10 Sup. Ct. Rep. 203; Cheaspeake & O. R. Co. v. Dixon, 179 U.S. 131, 138 , 45 S. L. ed. 121, 124, 21 Sup. Ct. Rep. 67. However, the petition for removal hardly raises this point. For it directs itself wholly against the allegations of joint negligence, and does not attempt to anticipate the trial on the merits so far as the conduct of the Illinois Central is concerned.
Mr. Justice Day, dissenting:
In my view, this decision departs from rulings recently made, and tends to disturb settled principles essential to the maintenance of jurisdiction in the Federal courts. In order to apply my views I will briefly restate the facts of the case.
Sheegog's administrator brought an action in the state court of Kentucky against the Illinois Central Railroad Company, a corporation of the state of Illinois, the Chicago, St. Louis, & New Orleans Railroad Company, a corporation of the state of Kentucky, and F. J. Durbin, a citizen of Kentucky. The Illinois Central Railroad Company, was the lessee of the Chicago, St. Louis, & New Orleans Railroad Company, and F. J. Durbin was alleged to be a conductor in the employ of the lessee road and in charge of the train, in the operation of which, as engineer, plaintiff's intestate was killed. The charge of the complaint was that, at the time of injury, the defendant the Chicago, St. Louis, & New Orleans Railroad Company was the owner of the roadbed, right of way, etc., and the Illinois Central Railroad Company was the lessee of [215 U.S. 308, 320] the railroad property, and the owner of the cars, engines, trains, and appliances, in the operation of which the intestate was killed; that the defendant Durbin was the conductor in the employ of the Illinois Central Railroad Company, operating the train at the time of the injury. The negligence charged against the defendant railroad companies was that the roadbed, rails, track, cattle guards, ties, fences, and right of way of the railroad were allowed to be, and for a long time had been, in a weak, rotten, ruinous, and defective condition; and, in addition thereto, as to the Illinois Central Railroad Company, its cars and engines were knowingly allowed to be and remain in an improper, defective, and dangerous condition, and were improperly constructed, where by the injury was caused, and that the defendant Durbin was guilty of negligence in running, ordering, and directing the train, and contributed to the injury thereby. And as a conclusion, the plaintiff charged the negligence of the railroad companies, as above described, in the maintenance of the track, roadbed, cattle guards, etc., together with the negligence of the Illinois Central Railroad Company in directing and permitting its cars, engines, and road to be operated while in a dangerous and defective condition, and the negligence of the conductor in directing the running and management of the train, 'all together jointly caused said wreck, and killed the plaintiff's intestate.'
Within the time allowed by law, the Illinois Central Railroad Company, the present plaintiff in error, appeared and filed its petition for removal to the Federal court. As the sufficiency of this petition to make a cause for removal is the ultimate question in the case, it is necessary to set out its allegations somewhat in detail.
The state court overruled this motion to remove, and its action was affirmed by the court of appeals of Kentucky. 126 Ky. 252, 103 S. W. 323.
In the court below, a peremptory instruction was given the jury to find in favor of the Kentucky corporation and the individual defendant. Notwithstanding this fact, the court of appeals of Kentucky applied a rule which it had laid down in former decisions, and held that the facts developed on the trial had shown that the administrator had reasonable grounds to join the local defendants, and was therefore justified in overruling the motion to remove. In other words, while the opinion seems to recognize that, if the allegations of the petition for removal were true, a fraudulent joinder was shown, nevertheless, the proof upon the merits showed that the joinder was proper.
The ground upon which the Kentucky court of appeals held the Kentucky railroad jointly liable with the Illinois Central for the injuries sustained is not very clear, in view of the fact that the opinion, in some parts of it, seems to make the liability depend upon the failure to construct a proper road, and in other parts seems to rest the responsibility upon the continuing duty of the lessor railroad company to furnish and maintain a safe roadbed in order to discharge the duties which it had undertaken by accepting the franchise which the state had conferred upon it. In the case to which the court makes reference (Nugent v. Boston, C. & M. R. Co. 80 Me. 62, 6 Am. St. Rep. 151, 12 Atl. 797), where a brakeman was injured by reason of the negligent construction of an awning of a station house of the defendant company, near the track, the liability of the lessor company was rested both upon the ground of the continuing duty to the public and because of the application of the principle which makes a lessor liable for a defective construction of the subjectmatter of the lease. In either view it is perfectly [215 U.S. 308, 323] apparent that the liability of the Illinois Central to its employees, and that of of the lessor company to the public, rests upon entirely different principles. In the case of the latter, the liability is because of the duty which, it is held, the lessor owes to the public; and in the former, because of the obligations of the employer to his employee, arising from the relation of master and servant. In this connection, the court of appeals of Kentucky, in the opinion in this case, said:
After citing the case from 80 Me. supra, the court adds:
It is apparent that the liability of the two railroad companies, although both might be liable for a defective roadbed, track, etc., sprang from a different relation, and was controlled by different principles. The liability to the plaintiff's intestate, of the Kentucky corporation, was to him as one of the public; that of the Illinois corporation arose from the relation of master and servant, and the duties thereby imposed upon the employer.
But let it be conceded that a proper construction of the opinion of the Kentucky court of appeals holds both the railroad companies, although upon different relations to the plaintiff's intestate, liable for a defective roadbed, it is none the less true that the Illinois Central Railroad Company had a right of removal to the Federal jurisdiction, in which to test its liability, unless it was properly joined with the other defendants in an action brought in good faith in the state court.
It is the result of the decisions of this court, as I understand them, that, if the facts which asserted a joint liability with the local defendant are shown by proper petition for removal, and proof, if necessary, to have been made for the purpose of defeating the jurisdiction of the Federal court, the right of removal still exists in favor of the nonresident company. This court has had occasion to consider this subject in a number of recent cases. Before taking them up, we may state certain principles applicable to the law of removals under the removal act which are so well settled as scarcely to need the citation of authorities.
When the petition for removal is filed in the state court, accompanied by the proper bond, a question of law as to the sufficiency of the petition for removal only is presented to that court. National S. S. Co. v. Tugman, 106 U.S. 118 , 27 L. ed. 87, 1 Sup. Ct. Rep. 58; Stone v. South Carolina, 117 U.S. 430 , 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Carson v. Hyatt, 118 U. S. [215 U.S. 308, 325] 279, 30 L. ed. 167, 6 Sup. Ct. Rep. 1050; Burlington, C. R. & N. R. Co. v. Dunn, 122 U.S. 513 , 30 L. ed. 1159, 7 Sup. Ct. Rep. 1262; Crehore v. Ohio & M. R. Co. 131 U.S. 240 , 33 L. ed. 144, 9 Sup. Ct. Rep. 692; Madisonville Traction Co. v. St. Bernard Min. Co. 196 U.S. 239 , 49 L. ed. 462, 25 Sup. Ct. Rep. 251.
It is equally well settled, and is a result of the principle just stated, that where the right of removal arises because of certain facts averred in the petition, that issue cannot be tried in the state court, but must be heard in the Federal court, which alone has jurisdiction to determine such issues of fact. Carson v. Dunham, 121 U.S. 421 , 30 L. ed. 992, 7 Sup. Ct. Rep. 1030; Burlington C. R. & N. R. Co. v. Dunn and Crehore v. Ohio & M. R. Co. supra; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U.S. 298 , 34 L. ed. 963, 11 Sup. Ct. Rep. 306; Madisonville Traction Co. v. St. Bernard Min. Co. supra.
In recent cases in this court the former adjudications have been reviewed and followed, and it has been held that, for the purposes of removal, the cause of action must be regarded as joint or several, accordingly as the plaintiff has averred the same to be in his complaint, in the absence of inferences arising from the pleading, or shown extrinsically upon a petition for removal, which warrant the conclusion that a fraudulent joinder has been made for the purpose of avoiding the jurisdiction of the Federal court. Chesapeake & O. R. Co. v. Dixon, 179 U.S. 131 , 45 L. ed. 121, 21 Sup. Ct. Rep. 67; Alabama G. S. R. Co. v. Thompson, 200 U.S. 206 , 50 L. ed. 441, 26 Sup. Ct. Rep. 161, 4 A. & E. Ann. Cas. 1147; Cincinnati, N. O. & T. P. R. Co. v. Bohon, 200 U.S. 221 , 50 L. ed. 448, 26 Sup. Ct. Rep. 166, 4 A. & E. Ann. Cas. 1152. In the Alabama & G. S. R. Co. Case, supra, certain employees, citizens of Tennessee, had been joined with the Alabama & Great Southern Railroad Company in an action for negligence, and the question of the right to join them was certified to this court, and it was held, after reviewing the former cases, that, in the absence of fraudulent joinder, the cause of action might be regarded, for the purposes of removal, to be that which the plaintiff had averred it to be.
In the Bohon Case, supra, considered with the Alabama G. S. R. Co. Case, supra, the action was brought against the railroad company and one Milligan, an engineer [215 U.S. 308, 326] in charge of an engine, the negligent operation of which, it was alleged, resulted in the death of the plaintiff's intestate. It appeared that the joinder was permitted by the laws of Kentucky, and it was held in this court that, in the absence of a showing of fraudulent joinder, the case was not a removable one. An examination of the petition for removal in that case shows that while there were allegations that the joinder was fraudulent, that conclusion was averred to arise because there was no joint liability of the railroad company and the employee; that he was joined because he was a resident of Kentucky, for the purpose of preventing removal. But there is no averment in the petition for removal in the Bohon Case, as there is in this case, that the allegations of fact upon which the complaint was based were untrue, made without any expectation of proving them, and for the purpose of defeating a removal to the Federal court. In concluding the discussion in the opinion in the Bohon Case, it was said:
In Wecker v. National Enameling & Stamping Co. 204 U.S. 176 , 51 L. ed. 430, 27 Sup. Ct. Rep. 184, 9 A. & E. Ann. Cas. 757, suit was brought in the state court in Missouri by Wecker against the Enameling & Stamping Company, Harry Schenck, and George Wettengel. Wettengel was a citizen of the state of Missouri, the enameling company was a foreign corporation. The complaint charged that the plaintiff was employed by the company in working about certain pots [215 U.S. 308, 327] used in the melting of grease and lubricant matter, which matter was delivered to the plaintiff in barrels of great weight, and which it was the plaintiff's duty to hoist to the top of the furnace and into the pots for melting. The negligence charged against the corporation consisted in allowing the pots to remain open and exposed while filled with hot and boiling lubricants, without covering, railing, or device or means of any character to protect the plaintiff from slipping or falling therein, and negligently failing to provide safe and sufficient hoisting apparatus for the use of the plaintiff in his employment, and failing to instruct him in his duties, whereby and because of the negligence charged, the plaintiff lost his balance and fell into one of the unguarded and open pots, receiving thereby great and painful injuries. Wettengel, it was charged, was employed by the corporation, and charged with the superintendence and oversight of the plaintiff in the performance of his duties, and with the duty of superintending and planning the construction of the furnace, and providing for the pots a reasonably safe and suitable covering, and sufficiently safe hoisting apparatus, and with the duty of instructing the plaintiff as to the manner of performing his duties. The complaint charges the negligence of Wettengel in planning and directing the construction of the furnace structure, and in providing suitable coverings and railings, and in providing and placing reasonably safe and sufficient hoisting apparatus, and in giving instructions as to the manner of performing the plaintiff's duties, and therefore charges that the negligence of the corporation and Wettengel, jointly, caused the injury, and prayed for a joint judgment against them.
In its petition for removal, the nonresident corporation charged that Wettengel was not, at the time of the accident and prior thereto, charged with the superintendence and oversight of the plaintiff, or with the duties of planning or directing the construction of the furnace, or providing a reasonably safe and suitable furnace and pots and railings or other device to protect the plaintiff, and was not charged [215 U.S. 308, 328] with the duty of placing reasonably safe and sufficient hoisting apparatus, nor with the duty of instructing the plaintiff in respect to his duties; that Schenck was a nonresident of Missouri, and that Wettengel had been improperly and fraudulently joined as a defendant for the purpose of fraudulently and improperly preventing, or attempting to prevent, the defendant from removing the cause to the United States circuit court, and that plaintiff well knew at the beginning of the suit that Wettengel was not charged with the duties aforesaid, and joined him as a defendant to prevent the removal of the case, and not in good faith. Defendant offered affidavits tending to show that Wettengel was employed in the office as a draftsman; that he had nothing to do with the selecting of plans or approving the same; that he had no authority to superintend the work, or to give instructions to any of the men as to the manner in which they should perform the work; that he was merely a subordinate in the employ of the company, whose sole duties were to attend to the mechanical work of drafting, to make the necessary drawings for the use of the mechanics, and he had nothing to do with the providing of the pots, railings, etc., or the hoisting apparatus; that his position was merely clerical, and confined to the making of drawings to enable mechanics to construct work from plans furnished by others in the employ of the defendant. Upon these affidavits the circuit court reached the conclusion that the attempt to join Wettengel was not made in good faith; that the allegations as to him were fraudulent and fictitious, for the purpose of preventing a removal to the Federal court.
This court declined to consider the question as to whether, as a matter of law, the cause of action was joint or several, or whether, upon the allegations of the complaint, Wettengel could be held jointly with the corporation ( 204 U.S. 183 ), and affirmed the judgment of the court below upon its findings of fact upon the issue of fraudulent joinder.
This case, therefore, held the doctrine of this court to be [215 U.S. 308, 329] that the circuit court of the United States, upon a proper petition for removal, may examine into the merits sufficiently to determine whether the allegations by reason of which a nonresident defendant may be sued in a state court are fraudulently and fictitiously made for the purpose of preventing removal. It is true that where one has a cause of action of which both state and Federal courts have jurisdiction, his motive in bringing the action in the one jurisdiction or the other is immaterial, and he may sue in the state court because he preferred that jurisdiction to a Federal court to which he had an equal right to go.
But this case presents a very different question. The inquiry here is not whether a cause of action exists which may be prosecuted in either court, but whether the allegations of the complaint, which give the right to a joint action in the state court, are falsely and fictitiously made, without the intention of proving them, and with the sole purpose of avoiding Federal jurisdiction. Since its decision, the case of Wecker v. National Enameling & Stamping Co. has been frequently cited and followed in the Federal courts. McGuire v. Great Northern R. Co., 153 Fed. 434; Donovan v. Wells, F. & Co., 22 L. R. A. (N. S.) 1250, 169 Fed. 363;1 Lockard v. St. Louis & S. F. R. Co. 167 Fed. 675; People's United States Bank v. Goodwin, 160 Fed. 727; McAlister v. Chesapeake & O. R. Co. 85 C. C. A. 316, 157 Fed. 740, 13 A. & E. Ann. Cas. 1068.
Applying these principles to the case at bar, the allegations of the complaint filed in the state court undertook to make a cause of action against the Illinois Central Company, the nonresident corporation, upon three grounds: First, because it was jointly liable with the Chicago, St. Louis, & New Orleans Railroad Company, the local corporation, for a defective roadbed; second, because it was liable for the negligent conduct of the conductor, Durbin, in running its trains; third, because it was liable for the negligent and improper construction of its locomotive and cars. As to the third ground of the complaint, the defective locomotive and [215 U.S. 308, 330] cars, the authorities agree that there is no responsibility upon the part of the lessor company. The policy of the law, as ruled by the Kentucky court of appeals, made the lessor corporation responsible for a defective roadbed; it was not responsible for defective appliances supplied by the lessee company, or for negligence in the running and management of the road. This was expressly held by the Kentucky court of appeals in Swice v. Maysville & B. S. R. Co. 116 Ky. 253, 75 S. W. 278, prior to its decision in the case at bar. Therefore, as to this ground of complaint, there was no contributing neglect of the local company or the conductor, Durbin.
If the allegations which gave a right to join these defendants were false and fictitious, such joinder should not be allowed to defeat the right of the foreign corporation to avail itself of the Federal jurisdiction. As we had occasion to say in the Wecker Case, the courts of the United States should not interfere with the jurisdiction of the state courts in cases properly within the same, and the Federal courts should be equally vigilant to defeat all fraudulent devices or attempts to avoid the jurisdiction of the Federal courts. If the allegations of the petition for removal were true, the statements of the complaint as to the negligence of Durbin and the local corporation were false and fraudulent, and made without the intention of proving the same, and for the purpose of preventing removal.
The sole jurisdiction to inquire into the truth of these allegations was in the Federal court; and while it would require a clear and strong case to make out such allegations of fraudulent joinder, jurisdiction to make just such an inquiry is vested by law, under the removal act, in the Federal courts. It may be that the allegations for removal might have been more specific, but they were sufficient to enable the Federal court to enter into an inquiry as to the fraudulent character of the joinder of the resident defendants. It might find, upon investigation, that the allegations as to the condition [215 U.S. 308, 331] of the roadbed and the negligence of the conductor were so entirely without foundation as to warrant the conclusion that the local corporation and the conductor were fraudulently joined to avoid the Federal jurisdiction. Indeed, it is to be noted in this connection that, at the close of the evidence, the trial court directed a verdict in favor of the local corporation and the conductor. It is true that the right to remove depends upon the allegations of the petition, but the course of the case in the state court is an illustration of the possible result of an investigation of the truth of the allegations of the petition for removal.
I therefore reach the conclusion that, upon the face of the petition for removal, there were allegations which ended the jurisdiction of the state court, and a sufficient statement of facts to enable the Federal court to investigate the truthfulness thereof, with a view to determine whether they were so false and fictitious as to show that they were made with a view to prevent the removal to the United States court.
In my opinion, the judgment of the court of appeals of Kentucky should be reversed.
Mr. Justice Harlan concurs in this dissent.
[ Footnote 1 ] 94 C. C. A. 609.