128 F. 97 (D.Kan. 1904), 326, Shaffer v. Union Brick Co.

Docket Nº:326.
Citation:128 F. 97
Party Name:SHAFFER v. UNION BRICK CO. et al.
Case Date:March 12, 1904
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 97

128 F. 97 (D.Kan. 1904)




No. 326.

United States Circuit Court, D. Kansas, Third Division.

March 12, 1904

Syllabus by the Court

To constitute a joint liability of master and servant for the negligence of the servant, there must be actual negligence, as contradistinguished from imputed negligence, of the master concurring with an act negligently committed by the servant.

This is a motion by plaintiff to remand the case to the state court, from whence it came for want of jurisdiction in this court.

The action was brought in the district court of Allen county by plaintiff to recover damages jointly from defendants for negligently causing the death of her husband, David C. Shaffer, while in the employ of the defendant brick company. The petition alleges deceased, when injured, was operating what is known as a 'dry pan'; that it was his duty to oil the machinery operating such pan immediately before commencing work; while doing so, under the direction of defendant Ratliff, an employee of the defendant brick company, the machinery was suddenly started by Ratliff removing a clutch; that deceased was caught in the machinery, and received injuries resulting in his death; that the machinery was started by Ratliff, who at the time knew, or should have known, the deceased was in a dangerous position, and likely to receive injuries therefrom.

The specific acts of negligence alleged against defendant the Union Brick Company are:

'(a) In failing to provide the best and latest improved machinery of the kind necessary for the purpose for which the machinery hereinbefore described was used by it; that said machinery not being the latest improved and standard machinery for such use, and not having the latest and best methods for providing safety to employees in operating it.

'(b) It was further negligent in not providing a system of guard rails or covering over and around said cogwheels for the purpose of preventing any one in oiling said machinery or in operating it from falling upon or into said cogwheels while in motion.

'(c) It was further negligent in starting said machinery, or causing it to be started, by its said foreman and codefendant, J. T. Ratliff, acting for it and in its behalf and by its direction, while said deceased, David C. Shaffer, was close to or upon said cogwheel, in the act of oiling it, as hereinbefore stated.

'(d) It was further negligent in not providing a gong or means of making a loud noise for the purpose of warning any and all employees, and more especially deceased, of the intention of any one to start said machinery, so that such employees, and more especially deceased, might have been warned, avoiding death or injury from the starting of said machinery.

'(e) That it was further negligent in causing said machinery to be started by its said codefendant, J. T. Ratliff, at the time and place hereinbefore mentioned, without giving deceased warning of such intention, said defendant J. T. Ratliff so acting for and in behalf of his codefendant, the Union Brick Company, being at the time he started said machinery in a position to have easily seen deceased at the place where he was, and to have easily given him warning of his intention to start such machinery.'

The act of negligence alleged against defendant J. T. Ratliff is:

'That said defendant J. T. Ratliff was negligent in carelessly and negligently starting said machinery in operation by the use of said clutch when he knew, or by the exercise of reasonable care and prudence might have

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known, that deceased was in a place where the starting of said machinery would cause his death or cause him great bodily injury, and in so starting said machinery without giving warning to deceased of his intention to so start such machinery, as hereinbefore stated.'

It is further alleged in the position that the Union Brick Company is a foreign corporation, organized and incorporated under the laws of the state of Wyoming, and that defendant Ratliff was, at the date of the injury, foreman and assistant manager of the business of the brick company.

The case was seasonably removed into this court upon petition of the brick company. The petition for removal alleges the facts necessary to show jurisdiction in this court; avers the existence of a separable controversy between plaintiff and defendant brick company; also alleges Ratliff, a citizen and resident of this state, to have been fraudulently made a party defendant to the action for the sole and only purpose of defeating the right of the brick company to remove the cause into this court.

Ewing, Gard & Gard, for plaintiff.

Campbell & Goshorn and Moore & Berger, for defendant the Union Brick Company.

POLLOCK, District Judge (after stating the facts as above).

The petition is framed on the theory that defendants are joint wrongdoers, and jointly liable in damages for the death of David C. Shaffer. If so, the case is not removable into this court. Powers v. Chesapeake & Ohio Railway, 169 U.S. 92, 18 Sup.Ct. 264, 42 L.Ed. 673; Louisville, etc., Railroad Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed. 473; Pirie v. Tvedt, 115 U.S. 41, 5 Sup.Ct. 1034, 1161, 29 L.Ed. 331; Sloane v. Anderson, 117 U.S. 275, 6 Sup.Ct. 730, 29 L.Ed. 899.

It is alleged in the petition for removal filed herein that Ratliff, a citizen and resident of the state of Kansas, was made party defendant for the sole and only purpose of defeating a removal of the case from the state court into this court, but such allegation cannot have effect in this case for two reasons: First, it is not supported by proof. In Warax v. Cincinnati, N.Q. & T.P. Ry. Co. (C.C.) 72 F. 637, it is said:

'In order that such joinder should be regarded as fraudulent, it must appear, by allegation and proof, not only that it was made for the purpose of avoiding the jurisdiction of the federal court, but also that the averments of the petition upon which the right to join the defendants is claimed are so unfounded and incapable of proof as to justify the inference that they were not made in good faith, with the hope and intention of proving them, or else that they do not state a joint cause of action.'

Again, it is well settled, if the plaintiff alleges a joint cause of action against the defendants in her petition filed in the state court, and one or more of such defendants are citizens of the state, a nonresident defendant may not remove the case into this court. In Powers v. Chesapeake & Ohio Railway, supra, it is said:

'It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in...

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