CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 367 Argued: January 31, 1938 --- Decided: April 25, 1938
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The question for decision is whether the oft-challenged doctrine of Swift v. Tyson [n1] shall now be disapproved.
Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a commonly used beaten footpath which ran for a short distance alongside the tracks, and that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim, he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. It denied liability, and the case was tried by a jury. [p70]
The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that, under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way -- that is, a longitudinal pathway, as distinguished from a crossing -- are to be deemed trespassers, and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence unless it be wanton or willful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts, and contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law.
The trial judge refused to rule that the applicable law precluded recovery. The jury brought in a verdict of $30,000, and the judgment entered thereon was affirmed by the Circuit Court of Appeals, which held, 90 F.2d 603, 604, that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law, and that,
upon questions of general law, the federal courts are free, in the 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. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. . . . It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train. [p71]
The Erie had contended that application of the Pennsylvania rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U.S.C. § 725 which provides:
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.
Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari.
First. Swift v. Tyson, 16 Pet. 1, 18, held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by its highest court; that they are free to exercise an independent judgment as to what the common law of the State is -- or should be, and that, as there stated by Mr. Justice Story:
the true interpretation of the thirty-fourth 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 intended 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 [p72] instrument, or what is the just rule furnished by the principles of commercial law to govern the case.
The Court, in applying the rule of § 34 to equity cases, in Mason v. United States, 260 U.S. 545, 559, said: "The statute, however, is merely declarative of the rule which would exist in the absence of the statute." [n2] The federal courts assumed, in the broad field of "general law," the power to declare rules of decision which Congress was confessedly without power to enact as statutes. Doubt was repeatedly expressed as to the correctness of the construction given § 34, [n3] and as to the soundness of the rule which it introduced. [n4] But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to it by the Court was erroneous, and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, [p73] the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written. [n5]
Criticism of the doctrine became widespread after the decision of Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518. [n6] There, Brown and Yellow, a Kentucky corporation owned by Kentuckians, and the Louisville and Nashville Railroad, also a Kentucky corporation, wished that the former should have the exclusive privilege of soliciting passenger and baggage transportation at the Bowling Green, Kentucky, railroad station, and that the Black and White, a competing Kentucky corporation, should be prevented from interfering with that privilege. Knowing that such a contract would be void under the common law of Kentucky, it was arranged that the Brown and Yellow reincorporate under the law of Tennessee, and that the contract with the railroad should be executed there. The suit was then brought by the Tennessee corporation in the federal court for western Kentucky to enjoin competition by the Black and White; an injunction issued by the District Court [p74] was sustained by the Court of Appeals, and this Court, citing many decisions in which the doctrine of Swift v. Tyson had been applied, affirmed the decree.
Second. Experience in applying the doctrine of Swift v. Tyson had revealed it defects, political and social, and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity; [n7] and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties. [n8]
On the other hand, the mischievous results of the doctrine had become apparent. Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State. Swift v. Tyson introduced grave discrimination by noncitizens against citizens. It made rights enjoyed under the unwritten "general law" vary according to whether enforcement was sought in the state [p75] or in the federal court, and the privilege of selecting the court in which the right should be determined was conferred upon the noncitizen. [n9] Thus, the doctrine rendered impossible equal protection of the law. In attempting to promote uniformity of law throughout the United States, the doctrine had prevented uniformity in the administration of the law of the State.
The discrimination resulting became, in practice, far-reaching. This resulted in part from the broad province accorded to the so-called "general law" as to which federal courts exercised an independent judgment. [n10] In addition to questions of purely commercial law, "general law" was held to include the obligations under contracts entered into and to be performed within the State, [n11] the extent to which a carrier operating within a State may stipulate for exemption from liability for his own negligence or that of his employee; [n12] the liability for torts committed within the State upon person resident or property located there, even where the question of liability [p76] depended upon the scope of a property right conferred by the State [n13] and the right to exemplary or punitive damages. [n14] Furthermore, state decisions construing local deeds, [n15] mineral conveyances, [n16] and even devises of real estate [n17] were disregarded. [n18]
In part, the discrimination resulted from the wide range of persons held entitled to avail themselves of the federal rule by resort to the diversity of citizenship jurisdiction. Through this jurisdiction, individual citizens willing to remove from their own State and become citizen of another might avail themselves of the federal rule. [n19] And, without even change of residence, a corporate citizen of [p77] the State could avail itself of the federal rule by reincorporating under the laws of another State, as was done in the Taxicab case.
The injustice and confusion incident to the doctrine of Swift v. Tyson have been repeatedly urged as reasons for abolishing or limiting diversity of citizenship jurisdiction. [n20] Other legislative relief has been proposed. [n21] 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. [n22] But the unconstitutionality [p78] of the course pursued has now been made clear, and compels us to do so.
Third. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State, whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. As stated by Mr. Justice Field when protesting in Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401, against ignoring the Ohio common law of fellow servant liability:
I am aware that what has been termed the general law of the country -- which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject -- has been often advanced in judicial opinions of this court to control a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States -- independence in their legislative and independence [p79] in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence.
The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr. Justice Holmes. [n23] The doctrine rests upon the assumption that there is "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute," that federal courts have the power to use their judgment as to what the rules of common law are, and that, in the federal courts, "the parties are entitled to an independent judgment on matters of general law":
but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally, but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. . . .
the authority and only authority is the State, and, if that be so, the voice adopted by the State as its own [whether it be of its Legislature or of its Supreme Court] should utter the last word.
Thus, the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said,
an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.
In disapproving that doctrine, we do not hold [p80] unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare that, in applying the doctrine, this Court and the lower courts have invaded rights which, in our opinion, are reserved by the Constitution to the several States.
Fourth. The defendant contended that, by the common law of Pennsylvania as declared by its highest court in Falchetti v. Pennsylvania R. Co., 307 Pa. 203; 160 A. 859, the only duty owed to the plaintiff was to refrain from willful or wanton injury. The plaintiff denied that such is the Pennsylvania law. [n24] In support of their respective contentions the parties discussed and cited many decisions of the Supreme Court of the State. The Circuit Court of Appeals ruled that the question of liability is one of general law, and on that ground declined to decide the issue of state law. As we hold this was error, the judgment is reversed and the case remanded to it for further proceedings in conformity with our opinion.
MR. JUSTICE CARDOZO took no part in the consideration or decision of this case.
1. 16 Pet. 1 (1842). Leading cases applying the doctrine are collected in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 530, 531. Dissent from its application or extension was expressed as early as 1845 by Mr. Justice McKinley (and Mr. Chief Justice Taney) in Lane v. Vick, 3 How. 464, 477. Dissenting opinions were also written by Mr. Justice Daniel in Rowan v. Runnels, 5 How. 134, 140; by Mr. Justice Nelson in Williamson v. Berry, 8 How. 495, 550, 558; by Mr. Justice Campbell in Pease v. Peck, 18 How. 595, 599, 600, and by Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 207, and Butz v. City of Muscatine, 8 Wall. 575, 585. Vigorous attack upon the entire doctrine was made by Mr. Justice Field in Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 390, and by Mr. Justice Holmes in Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370, and in the Taxicab case, 276 U.S. at 532.
2. In Hawkins v. Barney's Lessee, 5 Pet. 457, 464, it was stated that § 34
has been uniformly held to be no more than a declaration of what the law would have been without it: to-wit, that the lex loci must be the governing rule of private right, under whatever jurisdiction private right comes to be examined.
See also Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 525. Compare Jackson v. Chew, 12 Wheat. 153, 162, 168; Livingston v. Moore, 7 Pet. 469, 542.
3. Pepper, The Border Land of Federal and State Decisions (1889) 57; Gray, The Nature and Sources of Law (1909 ed.) §§ 533-34; Trickett, Non-Federal Law Administered in Federal Courts (1906) 40 Am.L.Rev. 819, 821-24.
4. Street, Is There a General Commercial Law of the United States (1873) 21 Am.L.Reg. 473; Hornblower, Conflict between State and Federal Decisions (1880) 14 Am.L.Rev. 211; Meigs, Decisions of the Federal Courts on Questions of State Law (1882) 8 So.L.Rev. (n.s.) 452, (1911) 45 Am.L.Rev. 47; Heiskell, Conflict between Federal and State Decisions (1882) 16 Am.L.Rev. 743; Rand, Swift v. Tyson versus Gelpcke v. Dubuque (1895) 8 Harv.L.Rev. 328, 341-43; Mills, Should Federal Courts Ignore State Laws (1900) 34 Am.L.Rev. 51; Carpenter, Court Decisions and the Common Law (1917) 17 Col.L.Rev. 593, 602-603.
5. Charles Warren, New Light on the History of the Federal Judiciary Act of 1789 (1923) 37 Harv.L.Rev. 49, 51-52, 81-88, 108.
6. Shelton, Concurrent Jurisdiction -- Its Necessity and its Dangers (1928) 15 Va.L.Rev. 137; Frankfurter, Distribution of Judicial Power Between Federal and State Courts (1928) 13 Corn.L.Q. 499, 524-30; Johnson, State Law and the Federal Courts (1929) 17 Ky.L.J. 355; Fordham, The Federal Courts and the Construction of Uniform State Laws (1929) 7 N.C.L.Rev. 423; Dobie, Seven Implications of Swift v. Tyson (1930) 16 Va.L.Rev. 225; Dawson, Conflict of Decisions between State and Federal Courts in Kentucky, and the Remedy (1931) 20 Ky.L.J. 1; Campbell, Is Swift v. Tyson an Argument for or against Abolishing Diversity of Citizenship Jurisdiction (1932) 18 A.B.A.J. 809; Ball, Revision of Federal Diversity Jurisdiction (1933) 28 Ill.L.Rev. 356, 362-64; Fordham, Swift v. Tyson and the Construction of State Statutes (1935) 41 W.Va. L.Q. 131.
7. Compare Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 209. The conflicts listed in Holt, The Concurrent Jurisdiction of the Federal and State Courts (1888) 160 et seq. cover twenty-eight pages. See also Frankfurter, supra, note 6, at 524-530; Dawson, supra, note 6; Note, Aftermath of the Supreme Court's Stop, Look and Listen Rule (1930) 43 Harv.L.Rev. 926; cf. Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction (1931) 79 U. of Pa.L.Rev. 869, 881-86. Moreover, as pointed out by Judge Augustus N. Hand in Cole v. Pennsylvania R. Co., 43 F.2d 953, 956-57, decisions of this Court on common law questions are less likely than formerly to promote uniformity.
8. Compare 2 Warren, The Supreme Court in United States History (rev. ed.1935) 89:
Probably no decision of the Court has ever given rise to more uncertainty as to legal rights, and though doubtless intended to promote uniformity in the operation of business transactions, its chief effect has been to render it difficult for business men to know in advance to what particular topic the Court would apply the doctrine. . . .
The Federal Digest, through the 1937 volume, lists nearly 1000 decisions involving the distinction between questions of general and of local law.
9. It was even possible for a nonresident plaintiff defeated on a point of law in the highest court of a State nevertheless to win out by taking a nonsuit and renewing the controversy in the federal court. Compare Gardner v. Michigan Cent. R. Co., 150 U.S. 349; Harrison v. Foley, 206 Fed. 57 (C.C.A. 8); Interstate Realty & Inv. Co. v. Bibb County, 293 Fed. 721 (C.C.A. 5); see Mills, supra, note 4, at 52.
10. For a recent survey of the scope of the doctrine, see Sharp & Brennan, The Application of the Doctrine of Swift v. Tyson since 1900 (1929) 4 Ind.L.J. 367.
11. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518; Rowan v. Runnels, 5 How. 134, 139; Boyce v. Tabb, 18 Wall. 546, 548; Johnson v. Chas. D. Norton Co., 159 Fed. 361 (C.C.A. 6); Keene Five Cent Sav. Bank v. Reid, 123 Fed. 221 (C.C.A. 8).
12. Railroad Co. v. Lockwood, 17 Wall. 357, 367-368; Liverpool & G. W. Stearn Co. v. Phenix Ins. Co., 129 U.S. 397, 443; Eels v. St. Louis, K. & N.W. Ry. Co., 52 Fed. 903 (C.C.S.D. Iowa); Fowler v. Pennsylvania R. Co., 229 Fed. 373 (C.C.A. 2).
13. Chicago v. Robbins, 2 Black 418, 428. Compare Yates v. Milwaukee, 10 Wall. 497, 506-507; Yeates v. Illinois Cent. R. Co., 137 Fed. 943 (C.C.N.D.Ill.); Curtis v. Cleveland, C.C. & St. L. Ry. Co., 140 Fed. 777 (C. G. E.D.Ill.). See also Hough v. Railway Co., 100 U.S. 213, 226; Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368; Gardner v. Michigan Cent. R. Co., 150 U.S. 349, 358; Beutler v. Grand Trunk Junction Ry. Co., 224 U.S. 85; Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66; Pokora v. Wabash Ry. Co., 292 U.S. 98; Cole v. Pennsylvania R. Co., 43 F. (2d) 953 (C.C.A. 2).
14. Lake Shore & M. S. Ry. Co. v. Prentice, 147 U.S. 101, 106; Norfolk & P. Traction Co. v. Miller, 174 Fed. 607 (C.C.A. 4); Greene v. Keithley, 86 F. (2d) 239 (C.C.A. 8).
15. Foxcroft v. Mallet, 4 How. 353, 379; Midland Valley R. Co. v. Sutter, 28 F. (2d) 163 (C.C.A. 8); Midland Valley R. Co. v. Jarvis, 29 F. (2d) 539 (C.C.A. 8).
16. Kuhn v. Fairmont Coal Co., 215 U.S. 349; Mid-Continent Petroleum Corp. v. Sauder, 67 F. (2d) 9, 12 (G. C.A. 10), reversed on other grounds, 292 U.S. 272.
17. Lane v. Vick, 3 How. 464, 476; Barber v. Pittsburgh, F. W. & C. R. Co., 166 U.S. 83, 99-100; Messinger v. Anderson, 171 Fed. 785, 791-792 (C.C.A. 6), reversed on other grounds, 225 U.S. 436; Knox & Lewis v. Alwood, 228 Fed. 753 (S.D.Ga.).
18. Compare, also, Williamson v. Berry, 8 How. 495; Watson v. Tarpley, 18 How. 517; Gelpcke v. City of Dubuqe, 1 Wall. 175.
19. See Cheever v. Wilson, 9 Wall. 108, 123; Robertson v. Carson, 19 Wall. 94, 106-107; Morris v. Gilmer, 129 U.S. 315, 328; Dickerman v. Northern Trust Co., 176 U.S. 181, 192; Williamson v. Osenton, 232 U.S. 619, 625.
20. See, e.g., Hearings Before a Subcommittee of the Senate Committee on the Judiciary on S. 937, S. 939, and S. 3243, 72d Cong., 1st Sess. (1932) 6-8; Hearing Before the House Committee on the Judiciary on H.R. 10594, H.R. 4526, and H.R. 11508, 72d Cong., 1st Sess., ser. 12 (1932) 97-104; Sen.Rep. No. 530, 72d Cong., 1st Sess. (1932) 4-6; Collier, A Plea Against Jurisdiction Because of Diversity (1913) 76 Cent.L.J. 263, 264, 266; Frankfurter, supra, note 6; Ball, supra, note 6; Warren, Corporations and Diversity of Citizenship (1933) 19 Va.L.Rev. 661, 686.
21. Thus, bills which would abrogate the doctrine of Swift v. Tyson have been introduced. S. 4333, 70th Cong., 1st Sess.; S. 96, 71st Cong., 1st Sess.; H.R. 8094, 72d Cong., 1st Sess. See also Mills, supra, note 4, at 68-69; Dobie, supra, note 6, at 241; Frankfurter, supra, note 6, at 530; Campbell, supra, note 6, at 811. State statutes on conflicting questions of "general law" have also been suggested. See Heiskell, supra, note 4, at 760; Dawson, supra, note 6; Dobie, supra, note 6, at 241.
22. The doctrine has not been without defenders. See Eliot, The Common Law of the Federal Courts (1902) 36 Am.L.Rev. 498, 523-25; A. B. Parker, The Common Law Jurisdiction of the United States Courts (1907) 17 Yale L.J. 1; Schofield, Swift v. Tyson: Uniformity of Judge-Made State Law in State and Federal Courts (1910) 4 Ill.L.Rev. 533; Brown, The Jurisdiction of the Federal Courts Based on Diversity of Citizenship (1929) 78 U. of Pa.L.Rev. 179, 189-91; J. J. Parker, The Federal Jurisdiction and Recent Attacks Upon It (1932) 18 A.B.A.J. 433, 438; Yntema, The Jurisdiction of the Federal Courts in Controversies Between Citizens of Different States (1933) 19 A.B.A.J. 71, 74-75; Beutel, Common Law Judicial Technique and the Law of Negotiable Instruments -- Two Unfortunate Decisions (1934) 9 Tulane L.Rev. 64.
23. Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370-372; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 532-536.
24. Tompkins also contended that the alleged rule of the Falchetti case is not, in any event, applicable here because he was struck at the intersection of the longitudinal pathway and a transverse crossing. The court below found it unnecessary to consider this contention, and we leave the question open.