Brunski v. Ford Motor Co.

• Decision Date: 31 March 1923
• Docket Number: 5462.
• Citation: 299 F. 807
• Parties: BRUNSKI v. FORD MOTOR CO. et al.
• Court: U.S. District Court — Western District of Missouri

299 F. 807

BRUNSKI v. FORD MOTOR CO. et al.

No. 5462.

United States District Court, W.D. Missouri, Western Division.

March 31, 1923

H. G Pope, of Kansas City, Mo., for plaintiff.

O. C Mosman, of Kansas City, Mo., for defendants.

REEVES District Judge (after stating the facts as above).

1. As a postulate to a consideration of the questions involved here it should be stated that, where plaintiff's petition states a joint cause of action, it is not removable, even though defendants may file separate answers and set up different defenses. A separate defense may defeat a joint recovery, but it cannot deprive the plaintiff of his right to prosecute his suit to final decision in his own way. Whiteaker v. Railroad, 252 Mo. 438, 160 S.W. 1009; Chi. Rock Island Ry. v. Whiteaker, 239 U.S. 421, 36 Sup.Ct. 152, 60 L.Ed. 360; Southern Railway Co. v Carson, 194 U.S. 136, 24 Sup.Ct. 609, 48 L.Ed. 907; Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 18 Sup.Ct. 264, 42 L.Ed. 673. Moreover, it is the rule that the identification of master and servant is so complete that the liability of both may be enforced in the same action (Southern Railway v. Carson, supra; Morin v. Rainey et al. (Mo. App.) 207 S.W. 858, loc. cit. 861; Davenport v. Southern Railway Co., 135 F. 960, 68 C.C.A. 444; 26 Cyc. 1543; Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703, 140 Am.St.Rep. 515.

In defining the duty of a foreman, it has been held that, having charge of and controlling workmen, he is presumed to observe the presence or absence of proper safety appliances and to know the danger of working without such appliances, and it is his duty to warn those working under his direction and control of dangers which are not obvious to them, and that he is guilty of actionable negligence in failing to warn the workmen of such danger. Russell v. Champion Fibre Co., 214 F. 963, 131 C.C.A. 259; Railway v. Schwyhart, 227 U.S. 184, 33 Sup.Ct. 250, 57 L.Ed. 473; Clark v. Railway et al. (D.C.) 194 F. 505.

2. In the case at bar, plaintiff's petition charges a joint liability and states facts which, under all the authorities, if true, would render the defendants jointly liable.

'A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. * * * A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. ' Alabama Southern Railway v. Thompson, 200 U.S. 206, 1oc. cit. 216 (26 Sup.Ct. 161, 164, 50 L.Ed. 441, 4 Ann.Cas. 1147); Lanning v. Railroad, 196 Mo. 647, loc. cit. 658, 94 S.W. 491.

The test of such controversy is the cause of action stated in the complaint. If it is joint in character, and no attack is made upon the good faith of the action, no separable controversy is presented, within the meaning of the act of Congress. Alabama Southern Ry. Co. v. Thompson, supra; Cincinnati, N.O. & T.P. Ry. v. Bohon, 200 U.S. 221, loc. cit. 226, 26 Sup.Ct. 166, 50 L.Ed. 448, 4 Ann.Cas. 1152. The cause of action sued for in this case is an entirety, and not separable. Stotler v. Railroad, 200 Mo. 107, loc. cit. 120, 98 S.W. 509.

3. The only other question in the case is whether the joinder of the two defendants was only a sham or a fraudulent device to prevent a removal. It is so charged in the petition to remove from the state court. The law requires that a showing must be made by the removing defendant of a state of facts rightly leading to that conclusion, apart from the pleader's deductions. Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, loc. cit. 152, 34 Sup.Ct. 278, 58 L.Ed. 544; Wilson v. Republic Iron & Steel...