Shaffer v. Union Brick Co.

• Citation: 128 F. 97
• Decision Date: 12 March 1904
• Docket Number: 326.
• Parties: SHAFFER v. UNION BRICK CO. et al.
• Court: U.S. District Court — District of Kansas

128 F. 97

SHAFFER v. UNION BRICK CO. et al.

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 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 a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up different defenses from the other defendants, and alleges that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said, 'A defendant has no right to say that an action shall be several which the plaintiff seeks to make joint.' A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right of prosecuting his suit to a final decision and in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.'

In Louisville, etc., Railroad Co. v. Wangelin, supra, it is said to be equally well settled--

'That in any case the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in that state court at the time of the filing of the petition for removal, independently of the allegations in that petition or in the affidavit of the petitioner, unless the petitioner both alleges and proves that defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court.'

In other words, the authorities hold that, if plaintiff has in law a joint cause of action against both defendants, she may join them in one action, and no wrong or fraudulent motive will be imputed to her, though the result of her action be to prevent a removal by the nonresident defendant.

Hence the only question of merit arising upon this motion for determination is, does the plaintiff allege in her petition a joint cause of action against both defendants? If so, the motion to remand must be granted.

The almost universal practice in vogue of late years, and more especially since the decision of the Chesapeake & Ohio Ry. Co. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed 121 (decided in October, 1900), of joining a local resident defendant, like an engineer, fireman, brakeman, or other employee, with the nonresident master, to prevent the removal by the master from the state to the federal court, demands a consideration and determination of this question upon principles alike applicable to all this class of cases. Doubtless there are cases of this character where the allegations of joint liability are so ridiculous or absurd upon their face that the court would be justified, from a simple inspection of the record, in holding that no joint liability does or could exist in the case. Again, no doubt there are cases in which it might be alleged in the petition for removal, and shown by proof, that a resident employee was fraudulently joined with a nonresident master for the sole purpose of preventing removal of the case by the master; but in comparison with the great body of litigation upon his question such cases are quite infrequent in...