Conrad Wecker v. National Enameling Stamping Company

• Decision Date: 14 December 1906
• Docket Number: No. 133,133
• Citation: 204 U.S. 176,27 S.Ct. 184,51 L.Ed. 430
• Parties: CONRAD WECKER, Plff. in Err., v. NATIONAL ENAMELING & STAMPING COMPANY and George Wettengel, Defts. in Err
• Court: U.S. Supreme Court

204 U.S. 176

27 S.Ct. 184

51 L.Ed. 430

CONRAD WECKER, Plff. in Err.,

v NATIONAL ENAMELING & STAMPING COMPANY and George Wettengel, Defts. in Err.

No. 133.

Submitted December 14, 1906.

Decided January, 7, 1907.

Messrs. Edward C. Kehr, Richard T. Brownrigg, and William L. Mason for plaintiff in error.

[Argument of Counsel from page 177 intentionally omitted]

Messrs. Robert A. Holland, Jr., Charles P. Wise, George F. McNulty, and James A. Seddon for defendants in error.

Mr. Justice Day delivered the opinion of the court:

This case is certified here from the circuit court of the United States for the eastern district of Missouri under § 5 of the court of appeals act of March 3, 1891 (26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549), upon a question of jurisdiction.

Conrad Wecker, the plaintiff below, brought his action in the circuit court of the city of St. Louis, state of Missouri, against the National Enameling & Stamping Company, Harry Schenck, and George Wettengel, undertaking to recover jointly against the National Enameling & Stamping Company, a corporation of the state of New Jersey, and Schenck and Wettengel, residents of the city of St. Louis, state of Missouri. The substance of the complaint is that defendant is a corporation employing the plaintiff in the work of firing, filling, stirring, emptying, and attending certain metal pots used in the melting of grease and lubricant matter in the plant of the defendant corporation; that the grease and lubricant matter was delivered by the corporation to the plaintiff in barrels of great weight,—about 600 pounds each,—and it was the plaintiff's duty in the course of his employment to hoist the same to the top surface of the furnace structure, into which the pots were set, and then to dump the grease and lubricant matter into the pots.

The negligence charged against the defendant corporation consisted in allowing the pots, which were constantly filled with hot and boiling lubricants, to remain open and exposed, without covering, railing, device, or means of any character to protect the plaintiff from accidentally slipping or falling into the same while engaged in the service of the corporation in the performance of his duties, and negligently failing to provide and properly place safe and sufficient hoisting apparatus for the use of the plaintiff in his employment in lifting said massed of grease and lubricant to the top of the furnace, and for failing to give the plaintiff instructions as to the proper manner of performing his duty, and thereby unreasonably endangering his safety in said employment. Plaintiff alleges that, by reason of this negligence, while engaged in the performance of his duties on the 12th of November, 1902, on the top of the furnace, he lost his balance and fell into one of the open, unguarded, and unprotected pots containing hot and boiling grease and lubricant, receiving thereby great and painful in- juries. Plaintiff below further charged that Schenck and Wettengel were employed by the corporation and charged by it with the superintendence and oversight of the plaintiff in the performance of his duty, and were employed and charged by the corporation with the duty of superintending and properly planning the construction of a furnace, and with the duty of providing for said pots reasonably safe and suitable covering, railing, or other device, and with the duty of providing and properly placing reasonably safe and sufficient hoisting apparatus for lifting the masses of grease and lubricant to the top of the furnace, and were further charged by the corporation with the duty of instructing the plaintiff as to the manner of performing his duties, and charges negligence of Schenck and Wettengel in planning and directing the construction of the furnace structure and providing suitable covers or railings as aforesaid, and providing and placing reasonably safe and sufficient hoisting apparatus, and in giving instructions as to the manner of performing plaintiff's duties, by reason whereof the plaintiff lost his balance and fell into one of the pots as aforesaid, to his great injury; and the complaint charges the joint negligence of the corporation and the defendants Schenck and Wettengel, and avers that his injuries were the result thereof, and prays judgment for damages jointly against the three defendants.

The defendant company filed its petition for a removal of the cause to the circuit court of the United States for the eastern district of Missouri, which petition contained the usual averments as to the character of the suit and the right of removal and diversity of citizenship between the defendant corporation and the plaintiff, and averred that Schenck, one of the codefendants, was also a nonresident of the state of Missouri and a citizen of the state of Illinois, and not served with process; also stated that Wettengel was, at the time of the commencement of the suit and since, a citizen of the state of Missouri; averred a separable controversy between it and the plaintiff as to the alleged negligence and as to the assump- tion of the risk upon the part of the plaintiff. As to Wettengel, the citizen of Missouri, it was alleged in the removal petition that he was not, at the time of the accident or prior thereto, charged with the superintendence and oversight of the plaintiff, or with the duty of superintending and properly planning the construction of the furnace, or providing a reasonably safe and suitable furnace and pots and railings or other device to protect the plaintiff, and was not charged with the duty of placing reasonably safe and sufficient hoisting apparatus, nor with the duty of instructing the petitioner in respect to his duties, as charged in the complaint, and, after stating that Schenck, like the defendant corporation, was a nonresident of Missouri and a citizen of another state, charged that Wettengel had been improperly and fraudulently joined as a defendant for the purpose of fraudulently and improperly preventing, or attempting to prevent, the defendant from removing the cause to the United States circuit court, and that the plaintiff well knew, at the time of the beginning of the suit, that Wettengel was not charged with the duties aforesaid, and that he was joined as a party defendant to prevent the removal of the cause, and not in good faith.

After removal, plaintiff filed his motion to remand the case to the state court, on the ground that there was not in the case a controversy between citizens of different states, and no separable controversy between the plaintiff and the company within the meaning of the removal act. The court, upon hearing the motion, refused to remand the cause, and afterward, plaintiff electing to stand upon his motion to remand, and refusing to recognize the jurisdiction of the United States court or to proceed with the prosecution of his case therein, upon motion of the defendant the court ordered the case to be dismissed, and rendered judgment that the plaintiff take nothing by the suit, and that the defendants go hence without day and recover their costs against the plaintiff. A bill of exceptions was allowed, and the court also certified that the only question decided by the court in the cause was that the join- ing of Wettengel as...