The Louisville and Nashville Railroad Company is a corporation
of Kentucky, and not of Tennessee, having from the latter state
only a license to construct a railroad within its limits, between
certain points, and to exert there some of its corporate
powers.
The rule announced in
Phoenix Insurance Company v.
Doster, 106 U. S. 32,
and in
Randall v. Baltimore & Ohio Railroad,
111 U. S. 482,
as to when a case may be withdrawn from a jury by a peremptory
instruction, reaffirmed.
This action was brought in the Circuit Court of Williamson
County, Tennessee, by Simon Callahan, to recover damages for
personal injuries sustained by him while in the discharge
Page 122 U. S. 392
of his duties as section foreman on a railroad between
Nashville, Tennessee, and Decatur, Alabama, which at the time, was
operated by the Louisville and Nashville Railroad Company. The
declaration alleged that the defendant was a corporation created by
the Legislature of Tennessee, and that the injuries complained of
were caused by the negligence and carelessness of that company, its
servants and agents. In due time, the defendant filed its petition,
accompanied by bond in proper form, for the removal of the action
into the Circuit Court of the United States for the Middle District
of Tennessee -- alleging that the plaintiff was a citizen of
Tennessee -- alleging that the plaintiff was a citizen of
Tennessee, and that the defendant was a citizen of Kentucky, having
its principal place of business in that commonwealth. The state
court made an order recognizing the right of removal and declaring
that no further proceedings be had therein in said suit.
In the circuit court, a motion to remand the cause to the state
court -- the ground of such motion being that the defendant was a
corporation of Tennessee, and therefore a citizen of the same state
with the plaintiff -- was denied. To that action of the court an
exception was taken.
Upon the trial of the case, the court gave a peremptory
instruction to find for the defendant. It also refused to give the
instructions asked in behalf of the plaintiff. The plaintiff sued
out this writ of error.
Page 122 U. S. 401
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first question presented by the assignments of error relates
to the refusal by the court below to remand the action to the state
court. If the defendant is a corporation of Kentucky, then its
right to have the case removed from the state court cannot be
denied.
Whether a corporation created by the laws of one state is also a
corporation of another state within whose limits it is permitted,
under legislative sanction, to exert its corporate powers, is often
difficult to determine. This is apparent from the former decisions
of this Court. To some of those decisions it will be well to refer,
before entering upon the examination of the particular statutes of
Tennessee, which, it is claimed, created the defendant a
corporation of that state.
In
Ohio & Mississippi
Railroad Co. v. Wheeler, 1 Black 286, 293 [argument
of counsel -- omitted],
66 U. S. 297,
it was a question whether that company was not a corporation both
of Indiana and Ohio. The company, claiming in its declaration to
be
"a corporation created by the
Page 122 U. S. 402
laws of the states of Indiana and Ohio, and having its principal
place of business in Cincinnati, in the State of Ohio, a citizen of
the State of Ohio,"
sued Wheeler, a citizen of Indiana, in the Circuit Court of the
United States for the District of Indiana. It was incorporated by
an act of the legislature of Indiana. Subsequently the Legislature
of Ohio passed an act reciting the incorporation of the company in
Indiana, and declared that "the corporate powers granted to said
company by the act of Indiana incorporating the same be
recognized." At a later date, the Legislature of Ohio passed an act
authorizing the extension of the company's road to Cincinnati,
declaring that the intention of the previous act "was to recognize,
affirm, and adopt the charter of the said Ohio and Mississippi
Railroad Company, as enacted by the Legislature of the State of
Indiana."
In the opinion of the Court it is said "that a corporation by
the name and style of the plaintiff appears to have been chartered
by the states of Indiana and Ohio," and therefore that the company
was "a distinct and separate corporate body in Indiana from the
corporate body of the same name in Ohio."
In
Railroad Co. v.
Harris, 12 Wall. 65,
79 U. S. 83, it
appeared that the Baltimore & Ohio Railroad Company was
incorporated by the State of Maryland for the purpose of securing
the construction of a railroad from Baltimore to some suitable
point on the Ohio River. Subsequently, Virginia, by a statute,
which set out at large the Maryland act, declared that
"the same rights and privileges shall be and are hereby granted
to the aforesaid company, in the Territory of Virginia, as are
granted to it within the Territory of Maryland,"
the company to be subject to the same pains, penalties, and
obligations as were imposed by the Maryland act, and the same
rights, privileges, and immunities being secured to Virginia and
her citizens, except as to lateral roads. Congress at a later date,
passed an act authorizing the company to extend its road into the
District of Columbia, and to exercise
"the same powers, rights, and privileges, and shall be subject
to the same restrictions in the construction and extension of said
lateral road into and within the said District, as they may
exercise
Page 122 U. S. 403
or be subject to under or by virtue of the said act of
incorporation in the construction and extension of any railroad in
the State of Maryland,"
&c. Touching the question whether the legislation of
Virginia and of Congress created a new corporation, this Court
said:
"In both, the original Maryland act is referred to, but neither
expressly or by implication creates a new corporation. The company
was chartered to construct a railroad in Virginia as well as in
Maryland. The latter could not be done without the consent of
Virginia. That consent was given upon the terms which she thought
necessary to prescribe. . . . The permission was broad and
comprehensive in its scope, but it was a license, and nothing more.
It was given to the Maryland body as such, and that body was the
same in all its elements and in its identity afterwards as
before."
Referring to
Ohio and Mississippi Railroad Co. v.
Wheeler, the Court said that
"as the case appears in the report, we think the judgment of the
court was correctly given. It was the case of an Indiana railroad
company, licensed by Ohio, suing a citizen of Indiana in the
federal court of that state."
In
Railroad Co. v. Vance, 96 U. S.
450, an act of the Illinois Legislature, referring to a
lease made by the Indianapolis and St. Louis Railroad Company, an
Indiana corporation, of a certain railroad in Illinois belonging to
the St. Louis, Alton and Terre Haute Railroad Company, an Illinois
corporation, and declaring that
"the said lessees, their associates, successors, and assigns,
shall be a railroad corporation in this state, under the style of
the Indianapolis and St. Louis Railroad Company, and shall possess
the same or as large powers as are possessed by said lessor
corporation, and such other powers as are usual to railroad
corporations,"
was held not to be a mere license to an Indiana corporation to
exert its corporate powers and enjoy its corporate rights and
privileges in Illinois, but to create the lessees, their
associates, successors, and assigns, a distinct corporate body in
the latter state. The Court said:
"It does more; it gives the style by which that corporation
shall be known. Still further, it does not authorize the
complainant corporation to exercise in Illinois the
Page 122 U. S. 404
corporate powers granted by the laws of Indiana, but confers, by
affirmative language, upon the corporation, which it declares shall
be a railroad corporation in Illinois, the same or as large powers
as are possessed by an Illinois corporation, the St. Louis, Alton
and Terre Haute Railroad Company, and, in addition such other
powers as are usual to railroad corporations. The Indianapolis and
St. Louis Railroad Company, as lessee of the St. Louis, Alton and
Terre Haute Railroad Company, was thus created, by apt words, a
corporation in Illinois. The fact that it bears the same name as
that given to the company incorporated by Indiana cannot change the
fact that it is a distinct corporation, having a separate existence
derived from the legislature of another state."
In
Memphis & Charleston Railroad Co. v. Alabama,
107 U. S. 581,
107 U. S. 584,
the question was as to the citizenship of the corporation against
which that suit was brought by the State of Alabama. The State of
Tennessee, in 1846, created a corporation by the name of the
Memphis and Charleston Railroad Company. The Legislature of Alabama
subsequently passed an act entitled "An act to incorporate the
Memphis and Charleston Railroad Company." That act referred to the
act of the Tennessee Legislature, and granted to said company a
right of way through Alabama to construct its road between certain
points named, declaring that it should have all the rights and
privileges granted to it by the said act of incorporation, subject
to the restrictions therein imposed. The statute contained other
provisions of the same general nature, from all of which, however,
it was not, as this Court observed, made quite clear whether the
company referred to in the body of the act was the one which the
act in its title purported to incorporate or the one created by the
Tennessee act and referred to in the preamble of the Alabama act.
But there were other sections expressly referring to the company
"hereby incorporated" -- that is, incorporated by the Alabama act.
The whole of the latter act, taken together, the Court said,
manifests the understanding and intention of the Legislature of
Alabama that the corporation, which was thereby granted a right of
way to construct through that state a railroad,
"was
Page 122 U. S. 405
and should be in law a corporation of the State of Alabama,
although having one and the same organization with the corporation
of the same name previously established by the Legislature of
Tennessee."
In the recent case of
Pennsylvania Company v. St. Louis,
Alton & Terre Haute Railroad Company, 118
U. S. 295,
118 U. S. 296,
the general question now before us received careful consideration.
It was there said:
"It does not seem to admit of question that a corporation of one
state, owning property and doing business in another state by
permission of the latter, does not thereby become a citizen of this
state also. And so a corporation of Illinois, authorized by its
laws to build a railroad across the state from the Mississippi
River to its eastern boundary, may, by permission of the State of
Indiana, extend its road a few miles within the limits of the
latter, or indeed through the entire state, and may use and operate
the line as one road by the permission of the state without thereby
becoming a corporation or a citizen of the State of Indiana. Nor
does it seem to us that an act of the legislature conferring upon
this corporation of Illinois, by its Illinois corporate name, such
powers to enable it to use and control that part of the road within
the State of Indiana as have been conferred on it by the state
which created it, constitutes it a corporation of Indiana. It may
not be easy in all such cases to distinguish between the purpose to
create a new corporation, which shall owe its existence to the law
or statute under consideration, and the intent to enable the
corporation already in existence, under laws of another state, to
exercise its functions in the state where it is so received. To
make such a company a corporation of another state, the language
used must imply creation, or adoption in such form as to confer the
power usually exercised over corporations by the state, or by the
legislature, and such allegiance as a state corporation owes to its
creator. The mere grant of privileges or powers to it as an
existing corporation, without more, does not do this, and does not
make it a citizen of the state conferring such powers."
So that the essential inquiry here must be whether, within the
doctrine established in the cases we have cited, the State
Page 122 U. S. 406
of Tennessee, by her legislation, granted a mere license to the
Louisville and Nashville Railroad Company to exercise within her
limits all or some of the powers conferred upon it by the State of
Kentucky, or established a new corporation over which she could
exert such direct control and authority as is usually exerted by a
state over corporations of her own creation.
The solution of this question depends upon the intent of the
Legislature of Tennessee, as gathered from the words used in the
statutes now to be examined.
We lay out of view the acts of the General Assembly of
Tennessee, approved February 1, 1850, incorporating a company by
the name of the Louisville and Nashville Railroad Company, and the
Act of February 9, 1850, entitled "An act to incorporate the
Nashville and Louisville Railroad Company." It appears in evidence
that no organization was effected under those acts, and we do not
understand the counsel for the plaintiff to rely upon either of
them as showing that the present defendant is a corporation of
Tennessee.
By an act of the General Assembly of Kentucky approved March 5,
1850, a corporation was created by the name of the Louisville and
Nashville Railroad Company, with power to construct a railroad
"from the City of Louisville to the Tennessee line, in the
direction of Nashville," and by an act of the same body, approved
March 20, 1851, authority was given to connect said road
"with any railroad extending to Nashville, on such terms and
conditions as the two companies may, from time to time, agree on,
for the through transportation and travel of freight and
passengers."
On the 4th of December, 1851, the General Assembly of Tennessee
passed an act, the
title of which is "An act to
incorporate the Louisville and Nashville Railroad Company." As the
question of citizenship depends mainly upon the construction of
that act, it is given in full as follows:
"SECTION 1.
Be it enacted by the General Assembly of the
State of Tennessee that the right of way for the construction
of a railroad from the line between the States of Kentucky and
Tennessee, so as to connect the cities of Louisville and
Page 122 U. S. 407
Nashville by railroad communication, be, and is hereby, granted
to the Louisville and Nashville Railroad Company, incorporated by
the Legislature of Kentucky, with all the rights, powers, and
privileges, and subject to all the restrictions and liabilities,
set forth and prescribed in a charter granted to said company by
the Legislature of Kentucky, and approved March 5, 1850, and the
amendments thereto, passed by said legislature, and approved March
20, 1851, for the term of nine hundred and ninety-nine years,
except as further provided in this act."
"SEC. 2.
Be it further enacted, that said company shall
construct said railroad from the boundary line between said states,
beginning at said line where it shall be intersected by that part
of said railroad which is to be within the State of Kentucky, to (a
point within or convenient to) the City of Nashville,
provided that in the construction of said railroad said
company shall commence at each end of the line at the same time,
and continue the work from each end until said railroad is
completed;
provided further that said company shall not be
compelled to use the capital stock subscribed and paid in by the
citizens, companies, corporations, or counties in the State of
Kentucky in the construction of that part of said railroad lying in
the State of Tennessee until the part thereof lying in Kentucky is
completed."
"SEC. 3.
Be it further enacted that so soon as said
company shall have completed five miles of said railroad from
Nashville, they may commence and prosecute their business, as
provided in the twenty-first section of said charter; that the
tariff of charges for transportation of passengers, and for goods,
wares, merchandise, and other articles and commodities, shall be
equal on all parts of said railroad in proportion to distance, and
that equal facilities for the transportation of the same in either
direction shall be furnished."
"SEC. 4.
Be it further enacted that the stockholders in
the State of Tennessee shall be entitled to be represented in said
company by directors residing in Tennessee in proportion to their
stock, to be chosen by the stockholders of the company in the
manner and at the time the other directors are chosen. "
Page 122 U. S. 408
"SEC. 5.
Be it further enacted that nothing in this
act, or in said charter or amendments thereto, shall be so
construed as to prohibit the Legislature of Tennessee from passing
any law authorizing the construction of railroads within this state
parallel to, crossing, or to unite with said railroad from
Louisville to Nashville, and the State of Tennessee reserves the
right so to do."
"SEC. 6.
Be it further enacted that the twentieth
section of said charter, and the fourth section of the amendments
thereto, shall be void and of no force or effect within this
state."
"SEC. 7.
And be it further enacted that the
twenty-third, twenty-fourth, twenty-fifth, and twenty-ninth
sections of the act of 11th December, 1845, incorporating the
Nashville and Chattanooga Railroad Company, be, and are hereby,
made a part of the said charter of the Louisville and Nashville
Railroad Company, to be in force within this state, and that this
bill shall take effect from and after its passage,
provided that the Commonwealth of Kentucky shall grant to
the State of Tennessee, or to such companies as the General
Assembly may charter, the right of way from Nashville to intersect
with the Lexington and Danville Railroad at Danville, Harrodsburg,
or such other point on that road as the company may designate,
provided it does not interfere with any vested rights of the
citizens of Kentucky, with the like powers and privileges granted
to this company."
"SEC. 8.
Be it further enacted that the company shall
bring said railway to the City of Nashville, or South Nashville,
and locate their depot convenient to the Nashville and Chattanooga
Railroad, so as to form the connection."
Some stress is laid upon the title of that act, as indicating a
purpose to create a corporation, and not simply to recognize an
existing one of another state, and invest it with authority to
exert its functions within the State of Tennessee. While the title
of a statute should not be entirely ignored in determining the
legislative intent, it cannot be used "to extend or restrain any
positive provisions contained in the body of the act," and is of
little weight even when the meaning of such
Page 122 U. S. 409
provisions is doubtful.
Hadden v.
Collector, 5 Wall. 110. Looking, then at the body
of the Tennessee Act of December 4, 1851, we find no language
clearly evincing a purpose to create a new corporation, or to adopt
one of another state, in such form as to establish the same
relations, in law, between the latter corporation and the State of
Tennessee, as would exist in the case of one created by that state.
The act grants to a named company "incorporated by the Legislature
of Kentucky" a right of way, within designated limits, for the
construction of a railroad, with all the rights, powers, and
privileges, and subject to all the restrictions and liabilities,
prescribed in its original and amended charter, "except as further
provided in this act." The remaining sections of the act are, in
form, additions and alterations of the charter of the Kentucky
corporation; but, in effect, they only prescribe the terms and
conditions upon which that corporation was given a right of way and
permitted to construct a railroad and exercise its powers in
Tennessee.
If the legislature of the latter state intended to do anything
more than grant a license to a corporation of another state to
construct a railroad and exert its corporate functions within her
limits; if it was intended to bring into existence a corporation
subject to the paramount authority of Tennessee as were other
corporations created by her laws, certain sections of the act
incorporating the Nashville and Chattanooga Railroad Company would
not have been made a part of the charter of the Louisville and
Nashville Railroad Company, to be in force simply "in this [that]
state," but would have been incorporated into the company's
charter, to be in force wherever and whenever it exerted the powers
granted to it. And the same observation applies to the proviso in
the 7th section of the Act of December 4, 1851, which requires that
Kentucky should grant to Tennessee, or to such companies as the
latter state might "charter," the right of way from Nashville to
intersect with a named road at certain points in Kentucky, with the
like powers and privileges granted by Kentucky to the Louisville
and Nashville Railroad Company.
Taking the whole of that act together, we are satisfied that
Page 122 U. S. 410
it was not within the mind of the Legislature of Tennessee to
create a new corporation, but only to give the assent of that state
to the exercise by the defendant, within her limits, and subject to
certain conditions, of some of the powers granted to it by the
state creating it.
This construction is not, if indeed it could be, affected by the
subsequent legislation of Tennessee. While the titles of the Acts
of January 16, 1852, December 15, 1855, and March 20, 1858, give
some slight support to the position taken by the plaintiff, the
acts themselves do not militate against the conclusions here
expressed. In legal effect, they only impose other terms and
conditions than those prescribed in the original act, upon the
exercise by the defendant, within Tennessee, of the powers and
privileges conferred by its charter, as granted by Kentucky.
Upon the authority of the cases cited, and for the reasons
herein stated, we are of opinion that the Louisville and Nashville
Railroad Company is a corporation of Kentucky, and not of
Tennessee, and consequently that the action was removable, upon its
petition and bond, into the circuit court of the United States.
It only remains to consider the assignments of error relating to
the charge to the jury, and to the refusal of the court to give
certain instructions in behalf of the plaintiff. The bill of
exceptions states that "on the trial of this cause the following
testimony was submitted to the jury." Then follows the evidence of
numerous witnesses for the respective sides, given in narrative
form, and the charge of the court. The court, among other things,
charged the jury that the plaintiff did not himself exercise
reasonable care and prudence, but was guilty of negligence, so that
had the people upon the train, or the persons controlled by him,
been injured, they could have recovered against his employer for
his negligence. "Under the facts proven in this case," the judge
said,
"were you to give a verdict against the defendant, I should feel
bound to set it aside, and grant a new trial. In such a state of
the case, it is my duty to instruct you to find a verdict for the
defendant, and I accordingly do so, declining to give the
Page 122 U. S. 411
instructions requested by plaintiff's counsel."
The bill of exceptions does not, in express words, state that it
contains all the evidence introduced at the trial.
Assuming, but without deciding, that the bill of exceptions
sufficiently shows that all the evidence is embodied in the record,
the question arises whether the court erred in withdrawing the case
from the jury, and directing a verdict for the company. In
Phoenix Insurance Company v. Doster, 106 U. S.
30,
106 U. S. 32, it
was said that
"Where a cause fairly depends upon the effect or weight of
testimony, it is one for the consideration and determination of the
jury, under proper directions as to the principles of law
involved,"
and that a case should never be withdrawn from them
"unless the testimony be of such a conclusive character as to
compel the court, in the exercise of a sound judicial discretion,
to set aside a verdict in opposition to it."
So in
Randall v. Baltimore & Ohio Railroad Company,
109 U. S. 482,
it was declared to be the settled law of this Court
"that when the evidence given at the trial, with all inferences
that the jury could justifiably draw from it, is insufficient to
support a verdict for the plaintiff, so that such a verdict, if
returned, must be set aside, the court is not bound to submit the
case to the jury, but may direct a verdict for the defendant."
These authorities sustain the charge to the jury. The evidence
makes a case of utter recklessness upon the part of the deceased,
who was a section boss of the defendant, charged with the duty of
keeping its road in repair between certain points so that trains
could pass over it in safety. He was guilty of the grossest
negligence in running his hand car into the deep cut where he was
injured without having sent anyone ahead to watch for and warn the
passenger train which he knew was approaching or would soon reach
that point on the road. But for his negligence in that respect, he
would not have been injured.
It is said, however, that despite any negligence to be fairly
imputed to the deceased, the agents of the company, who were in
charge of the passenger train, might have avoided injuring him had
they exercised reasonable diligence to that
Page 122 U. S. 412
end. This position is supposed by counsel to be justified by §§
1166, 1167, and 1168 of the Code of Tennessee, which provide:
"SEC. 1298 (1166). Every railroad company shall keep the
engineer, fireman, or some other person upon the locomotive, always
upon the lookout ahead, and when any person, animal, or other
obstruction appears upon the road the alarm whistle shall be
sounded, the brakes put down, and every possible means employed to
stop the train and prevent an accident."
"SEC. 1299 (1167). Every railroad company that fails to observe
these precautions, or cause them to be observed by its agents and
servants, shall be responsible for all damages to persons or
property occasioned by or resulting from any accident or collision
that may occur."
"SEC. 1300 (1168). No railroad company that observes, or causes
to be observed, these precautions shall be responsible for any
damages done to persons or property on its road. The proof that it
has observed said precautions shall be upon the company."
Code (Milliken and Vertrees) §§ 1298-1300.
Without considering the question whether those sections are
intended for the benefit of the general public only, not for the
servants of the company -- especially one whose negligence caused
or contributed to cause the accident -- it is sufficient to say
that the court below correctly held that the requirements of the
Tennessee Code were complied with by the company, so far at least
as the circumstances attending the injury of the deceased are
concerned. A verdict based upon a different view of the evidence
should have been set aside upon motion by the defendant.
The jury having been properly directed, in view of all the
evidence, to find a verdict for the company, it is unnecessary to
consider the exceptions taken to its refusal to grant certain
instructions asked in behalf of the plaintiff.
The judgment is affirmed.