Davis v. Standard Oil Co. of Indiana

• Decision Date: 18 March 1931
• Docket Number: No. 8905.,8905.
• Citation: 47 F.2d 48
• Parties: DAVIS v. STANDARD OIL CO. OF INDIANA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

47 F.2d 48 (1931)

DAVIS v. STANDARD OIL CO. OF INDIANA et al.

No. 8905.

Circuit Court of Appeals, Eighth Circuit.

February 13, 1931.

Rehearing Denied March 18, 1931.

O. C. Mosman, of Kansas City, Mo. (Burrus & Burrus, of Independence, Mo., and Mosman, Rogers & Buzard and Clay C. Rogers, all of Kansas City, Mo., on the brief), for appellant.

William B. Bostian, of Kansas City, Mo. (R. R. Brewster, of Kansas City, Mo., on the brief), for appellees.

Before STONE and BOOTH, Circuit Judges, and DEWEY, District Judge.

BOOTH, Circuit Judge.

This is an appeal from a judgment dismissing an action for want of prosecution after plaintiff had declined to proceed further in the action; his motion to remand the case to the state court having been denied.

The action was for damages on account of personal injuries, and was commenced in the state circuit court of Grundy county, Mo., against the Standard Oil Company of Indiana and its foreman, Charles Street.

It appeared without dispute that the plaintiff was a citizen and resident of Jackson county, Mo.; that defendant Standard Oil Company was a corporation organized under the laws of the state of Indiana, and was a citizen and resident of that state and not of Missouri; that said company had places of business and did business both in Grundy county and Jackson county, Mo.; that defendant Street was a citizen and resident of Jackson county, Mo.

The alleged cause of action arose out of an accident while plaintiff was in the employ of defendant company in Jackson county.

The short facts alleged as to the happening of the accident are as follows: Defendant company was engaged in certain construction work in Jackson county, and defendant Street was foreman on the job. Plaintiff was employed under Street in transporting mortar in a wheelbarrow from a mortar box to the place of construction where bricklayers were working. Between the mortar box and the place of construction was a fire wall two feet high. A permanent runway or scaffold led over the fire wall. Between the end of the permanent part of the runway and the mortar box loose boards were placed; the ground having been more or less cut up by trucks. Over the ends of the loose boards where they met was placed a steel plate. The mortar was carried in wheelbarrows along this pathway of loose boards onto the permanent part of the runway and over the fire wall to the place of construction. At the point where the loose board which was partly on the permanent part of the runway and partly on the ground met the next loose board which was wholly on the ground, there was apparently a turn in the pathway of boards leading to the mortar box, and at this turn was one of the steel plates. As the plaintiff was pushing his wheelbarrow of mortar along the pathway and about to go upon the permanent part of the runway, his wheelbarrow hit the steel plate, and this in some way caused one of the loose boards to slip or shift position, and plaintiff was thrown and injured.

The allegations of negligence in the complaint are as follows:

"The defendants had negligently and carelessly constructed and maintained said scaffold, platform or runway in that said scaffold, platform or runway was loose and insecure and was not safely and securely fastened and was likely to slip or shunt to one side when used by plaintiff and other workmen.

"The defendants, with knowledge on their part of said loose, unfastened, insecure, dangerous and defective condition of said scaffold, platform or runway negligently and carelessly ordered, commanded and directed plaintiff to use said scaffold, platform or runway when they knew, or by the exercise of due care on their part should have known that said scaffold was unfastened, loose, insecure and unsafe and that plaintiff was likely to be injured thereby while he was using and working upon same.

"The defendants negligently and carelessly assured plaintiff that said scaffold, platform or runway was safe for use by him when defendants knew or by the exercise of due care on their part should have known that said scaffold, platform or runway was not reasonably safe because of the aforementioned conditions thereof.

"The defendants negligently and carelessly ordered and directed plaintiff to hurry with his work of wheeling wheelbarrows of mortar and negligently and carelessly required plaintiff to haul in said wheelbarrow a greater load or quantity of mortar than plaintiff could haul with reasonable safety to himself, over said scaffold, platform or runway."

The complaint alleges that these several acts of negligence concurred in causing the injuries complained of.

In the state court, Street pleaded that the circuit court of Grundy county had no jurisdiction on the ground that, under the venue statutes of Missouri, the action could not be brought against him in Grundy county. Street also answered to the merits.

The plea to the jurisdiction was overruled by the state court.

Defendant Standard Oil Company removed the case to the United States court for the Western district of Missouri. The grounds of removal alleged were: First, diversity of citizenship between the defendant Standard Oil Company and plaintiff, and a separable controversy between them; second, that the acts of negligence alleged against Street were all acts of nonfeasance and not such acts of misfeasance as could make him jointly liable with defendant Standard Oil Company; third, that Street was not a real but a mere paper defendant, inasmuch as the circuit court of Grundy county had not acquired and could not acquire jurisdiction over the person of Street; fourth, that the joinder of Street was fraudulent and made for the purpose of preventing removal.

The facts claimed to constitute fraud were set out at length and consisted mainly in averments that the acts of negligence charged against Street were false and known by plaintiff to be false.

Plaintiff filed a motion to remand, denying the allegations of the petition for removal.

There were thus presented to the trial court four questions: First, whether the complaint showed on its face that plaintiff attempted to state a joint cause of action against the Standard Oil Company and Street; second, whether Street was a real defendant in the case; third, whether the facts stated in the complaint could, as a matter of law, constitute a joint cause of action against the two defendants; fourth, whether plaintiff had in fact, though not on the face of the complaint, fraudulently joined Street as a defendant in order to prevent removal.

The fourth question involved an issue of fact. Evidence was accordingly taken thereon. The court finally denied the motion to remand, but without indicating the particular ground or grounds of the ruling.

The plaintiff declining to proceed further with the action, the court dismissed the case for want of prosecution.

The same four questions are presented on the record here as in the court below. As to the first, there is no controversy that on the face of the complaint plaintiff attempted to state a joint cause of action against both defendants, the Standard Oil Company and Street. The second question, whether Street, on the face of the record, was and is a real defendant, we think must be answered in the affirmative for several reasons:

First, at the time of the removal of the cause by the Standard Oil Company from the state circuit court for Grundy county, the plea to the jurisdiction of that court over the person of defendant Street had been overruled by that court. No exception appears to have been taken by Street to the order overruling his plea to the jurisdiction. By reason of this fact, and by reason of his answer to the merits, Street was in the state circuit court of Grundy county under a general appearance at the time of the removal.

Second, on December 6, 1926, after the removal of the cause to the federal court, Street appeared in that court and took part in the taking of testimony and in the hearing on the motion of plaintiff to remand the cause to the state court. We think this appearance was a waiver of objection to the jurisdiction of the federal court over the person of defendant Street. He had raised no issue of fraudulent joinder.

Third, after the federal court had denied the motion to remand, Street, on December 11, 1926, filed in that court an answer going to the merits. This answer of Street to the merits stood in the federal court for more than two years until January 16, 1929, when leave was granted to withdraw the answer and file a plea to the jurisdiction. This plea to the jurisdiction of the federal court was based solely on the alleged lack of jurisdiction of the state circuit court of Grundy county. This plea by Street was not brought to a hearing and was never passed upon by the federal court. It, of course, could have had no influence in procuring the order denying the petition to remand the case to the state court, inasmuch as that order was made more than two years before this plea was filed.

We think that, under all these circumstances, the general appearance of Street in the federal court is not open to question, and that he must be considered as a real defendant in the case.

The third question, whether the facts stated in the complaint could constitute a joint cause of action against both defendants, we think must also be answered in the affirmative. The answer to this question is to be determined by the state law. See McFarland v. B. F. Goodrich Rubber Company, 47 F.(2d) 44, and cases therein cited.

The alleged negligent failure to furnish a safe scaffold and runway could not form the basis of joint liability of both defendants, and this is conceded by plaintiff. But the alleged negligent order of Street to plaintiff to make use of the unsafe scaffold and runway, and the alleged negligent assurance of safety to plaintiff by Street, would either of them be an act of misfeasance, and could from the basis of joint...