Donaldson v. Tucson Gas, Electric Light & Power Co.

• Decision Date: 27 November 1935
• Docket Number: No. L-667.,L-667.
• Parties: DONALDSON v. TUCSON GAS, ELECTRIC LIGHT & POWER CO. et al.
• Court: U.S. District Court — District of Arizona

14 F. Supp. 246

DONALDSON v. TUCSON GAS, ELECTRIC LIGHT & POWER CO. et al.

No. L-667.

District Court, D. Arizona.

November 27, 1935.

Misbaugh & Fickett, of Tucson, Ariz., for plaintiff.

Darnell, Pattee & Robertson, of Tucson, Ariz., for defendants.

SAMES, District Judge.

The complaint charges the defendant Tucson Gas, Electric Light & Power Company, a foreign corporation, and defendant Russell V. Sanford, a resident of the state of Arizona, superintendent of the electrical department of said defendant utility company, jointly, with negligence resulting in plaintiff's injury. The negligence alleged consists of noncompliance on the part of both defendants with general order No. 37 of the Arizona corporation commission adopting the National Electric Safety Code published by the Federal Bureau of Standards, in the maintenance of the apparatus for the transmission of electric current to the motor at the well on plaintiff's premises.

The defendant corporation contends that the joinder of Sanford as defendant in the action is fraudulent and to prevent removal, and that the action is removable to the federal court for the reason that the complaint does not state a cause of action against its codefendant Sanford, since the negligence charged consists only of omissions or nonfeasance on the part of Sanford in his employment with the defendant company for which he is not liable to third persons, and that a separable controversy between the plaintiff and the defendant utility company is presented to which the defendant Sanford is not a proper, necessary, or indispensible party.

If no cause of action against the defendant Sanford is alleged in the complaint, the motion to remand should be denied. If a joint cause of action against both defendants is disclosed, this court is without jurisdiction to entertain the same and the action should be remanded to the state court.

The weight of authority in the federal courts seems to be that the servant is not liable to third persons for nonfeasance or mere omissions in the employ of his master unless some duty on the part of the employee to the person injured is shown. Knight v. Atlantic Coast Line R. Co. et al. (C.C.A.) 73 F.(2d) 76, 99 A.L.R. 405; Morefield v. Ozark Pipe Line Corporation (D.C.) 27 F.(2d) 890; Davis v. St. Louis & S. F. R. Co. (D.C.) 8 F.Supp. 519; Macutis v. Cudahy Co. (D.C.) 203 F. 291; Kelly v. Chicago & A. R. Co. (C. C.) 122 F. 286.

In all of the federal cases examined in which the court held that the employee was not liable for nonfeasance or omissions in his master's service to third persons injured thereby, no statutory duty on the part of the employee was involved.

Where the employee in the performance of the duties of his employment owes a duty to the public as well as to his master, he is liable for injuries resulting from a violation thereof. Burrichter v. Chicago, M. & St. P. R. Co. (D.C.) 10 F. (2d) 165.

The first inquiry therefore is: Does the complaint disclose a cause of action against the defendant Sanford?

The existence of a cause of action is to be determined by the law of the state where the injury occurs. Jarrett v. Wabash R. Co. (C.C.A.) 57 F.(2d) 669.

Section 729, Revised Code of Arizona 1928, provides as follows: "Every officer, agent, or employee of any public service corporation, who violates or fails to comply with, or procures, aids, or abets any violation by any public service corporation of any provision * * * of any order, rule or requirement, of the commission, is guilty of a misdemeanor." It does not appear that this statute has ever been construed by the Supreme Court of Arizona and the question of civil liability against such officer, agent, or employee for its violation to the party injured, determined. The enactment is an added provision of law for the safety of the general public.

Where a statute, though penal in character, plainly imposes a duty for the benefit of a class of individuals, a right of action accrues to a person of such class injured through breach of the duty. Narramore v. Cleveland, C. C. & St. L. R. Co. (C.C.A.) 96 F. 298, 48 L.R.A. 68; Burrichter v. Chicago, M. & St. P. R. Co., supra; Zajkowski v. American Steel & Wire Co. (C.C.A.) 258 F. 9, 6 A.L.R. 348; Ross v. Schooley (C.C.A.) 257 F. 290; Texas & N. O. R. Co. v. Brotherhood of Railway and Steamships Clerks (C.C. A.) 33 F.(2d) 13; Armour v. Wanamaker (C.C.A.) 202 F. 423.

The Supreme Court of Arizona in the case of Salt River Water Users' Ass'n v. Compton, 39 Ariz. 491, 8 P.(2d) 249, held that where a valid statute enacted for public safety, or government regulation made in pursuance thereof, provides that a certain thing must, or must not, be done, if a failure to comply with the regulations is the proximate cause of injury to another, such failure is actual negligence. General order No. 37 of the Arizona corporation commission was referred to but found not applicable to the defendant in that case. In the case of Salt River Water Users' Association v. Green, 39 Ariz. 508, 509, 8 P.(2d) 255, a violation of said order No. 37 as amended was alleged. The court reiterates the rule laid down in the Compton Case and added that such violation is negligence per se; that if there is evidence in the record showing that the defendant did violate a valid regulation affecting it and plaintiff was injured thereby, there would be a prima facie case to go to the jury.

It seems clear that the first question on the removal petition must be answered in the affirmative. It remains to be determined whether the controversy is joint or several for the purpose of removal.

The law of the state where the action is brought determines whether the liability is joint or several. McFarland v. Goodrich Rubber Co. (C.C.A.) 47 F.(2d) 44; Yoes v. Continental Oil Co. (D.C.) 5 F. Supp. 575; Morris v. E. I. Du Pont De Nemours & Co. (C.C.A.) 68 F.(2d) 788; Kelly v. Robinson (D.C.) 262 F. 695; Davis v. Standard Oil Co. (C.C.A.) 47 F.(2d) 48; Watson v. Chevrolet Motor Co. (C. C.A.) 68 F.(2d) 686.

In the case of Davis v. Boggs, 22 Ariz. 497, 199 P. 116, the result of a crossing accident, in which the negligence charged against the railway company and its employee jointly was the failure to ring the bell on approaching the crossing as required by the statute, the Supreme Court held that the master may fairly be held to be under obligation to see that his servants do not violate the criminal law in the operation of his equipment and that the legislative precaution for public safety should be obeyed by his employees. The rule of respondeat superior operates to charge masters where the act done by the servant is prohibited by statute.

The plaintiff in the instant case alleges that though the defendants were notified of the defective and dangerous condition of the electrical apparatus on the premises of the plaintiff, the defendants failed and omitted to put such apparatus in a safe and proper condition in accordance with the specifications and requirements of the National Electric Safety Code and in said omission violated said general order No. 37 of the Arizona corporation commission.

The liability of the defendant Sanford, superintendent of the electrical...