Dowell v. The Chicago

• Decision Date: 10 December 1910
• Docket Number: 16,745
• Citation: 112 P. 136,83 Kan. 562
• Court: Kansas Supreme Court
• Parties: ALBERT M. DOWELL, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY and ED JOHNSON, Appellants

112 P. 136

83 Kan. 562

ALBERT M. DOWELL, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY and ED JOHNSON, Appellants

No. 16,745

Supreme Court of Kansas

December 10, 1910

Decided July, 1910.

Appeal from Seward district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACTIONS AND REMEDIES--Joint Wrongdoers--Employee's Liability to a Third Party for a Misfeasance. An averment that an engineer of a railway company negligently and recklessly ran the engine of which he was in charge against an employee at work upon the track, without signal or warning of any kind, and thus seriously injured him, alleges a misfeasance--a violation of the duty of the engineer to the track worker, and for the wrongful act he and the railway company may be sued jointly by the injured employee.

2. REMOVAL OF CAUSES--Joinder of Resident and Nonresident Defendants--Separable Controversy. Where the injured employee may proceed jointly or severally against the nonresident railway company and the resident engineer liable for the injury, and where he elects in good faith to proceed against them jointly, the action does not become a separable controversy for the purpose of removal because the liability of one of the defendants arises under the statute and the other under the common law, nor because different lines of proof may be necessary to establish the negligence of each nor yet because the plaintiff may have misconceived his right of action or may be unable ultimately to sustain it.

3. REMOVAL OF CAUSES -- Joinder to Defeat Removal --Fraudulent Joinder. Since the plaintiff had the legal right to sue the tort-feasors jointly for the wrong done, the allegation that the resident and nonresident tort-feasors were sued together for the purpose of preventing a removal of the case to the federal court does not of itself state a fraudulent joinder.

4. FRAUD--Pleading. A general averment of fraud, without stating the facts upon which the charge is based, is insufficient to raise an issue for the determination of the court.

5. REMOVAL OF CAUSES--Fraudulent Joinder--Nominal Party. A showing that the resident defendant is a man of little means and has no property that could be seized to satisfy a judgment rendered against him does not establish that he is a sham party, nor that the joinder was fraudulent.

6. RAILROADS--Care Required of Employee at Work on the Track. An employee at work on a railroad track, being in a place of great danger, must take reasonable precautions for his safety in such a situation; but the degree of care exacted of travelers or persons about to cross a track is not required of one whose duty requires his presence on the track.

7. RAILROADS--Statutory Notice of Injury to Employee--Service. The notice required to be given to a railroad company in order to fix its liability for an injury to an employee resulting from the negligence of coemployees or agents of the railroad company, as provided for in chapter 341 of the Laws of 1905, may be served by leaving it or a copy thereof with the person in charge of any depot or station of the company. This will be effectual, without regard to whether or not the railroad company has previously designated a person in the county upon whom service may be made.

8. COMPROMISE AND SETTLEMENT--Mental Capacity to Contract--Findings and Evidence. The evidence examined and found to be sufficient to sustain the findings and verdict of the jury.

M. A. Low, and Paul E. Walker, for the Chicago, Rock Island & Pacific Railway Company; V. H. Grinstead, for Ed Johnson.

Houston & Brooks, and F. S. Macy, for the appellee; Ed Hyde, of counsel.

OPINION

JOHNSTON, C. J.:

Albert M. Dowell brought this action against the Chicago, Rock Island & Pacific Railway Company and Ed Johnson to recover damages for personal injuries alleged to have been sustained by him through the negligence of the railway company and of Johnson, an engineer of the company. Dowell was a yardman at the station of Liberal, and on January 21, 1907, was engaged in removing cinders and other debris from a track of the company; and, while doing so, Johnson, it was alleged, negligently backed an engine against him, injuring him so that it became necessary to amputate his right leg above the knee and his left leg below the knee. It was alleged that the engine was backed upon him without warning or signal of any kind. There was an averment that Johnson was incompetent and unfit to act as engineer and was known to be so by the railway company, and it was also stated that the engine was old and defective and lacked the appliances necessary to control the starting and stopping of the engine, and that this, too, was well known to the railway company. It was further alleged that the injury resulted from the incompetency of Johnson, and from his act in carelessly, needlessly and recklessly running upon and injuring Dowell; and that Johnson's acts and that of the railway company concurred in inflicting the injury for which the action was brought.

Shortly after the filing of the petition, and before answer was due, the railway company filed its petition for a removal to the federal court, which, after stating the nature of the controversy and that the amount claimed was $ 40,000, recited that Dowell is a citizen of Kansas and that the railway company is a corporation duly organized under the laws of Illinois and Iowa, and is a citizen of those states and not of Kansas. It was further alleged that the cause of action set up by Dowell against the railway company was a separable controversy, capable of being finally determined between those parties without the presence of Johnson, and it was also charged that "Johnson was joined as defendant in this action by the plaintiff for the sole and fraudulent purpose of defeating and preventing this defendant, your petitioner, from removing this action from the state court in which it is now pending to the United States circuit court, . . . and for the sole and fraudulent purpose of defeating said jurisdiction of the said United States circuit court in this action." Further along in the petition it was alleged that plaintiff did not have a cause of action against Johnson or any reasonable grounds upon which to base a recovery from him, and that there was no joint cause of action against both defendants. It was also alleged that Johnson is a man of small means, with little if any property from which a judgment against him could be satisfied, while the railway company is solvent, with a large amount of property within the jurisdiction of the court to meet any recovery that might be obtained against it. An adequate removal bond was offered, which the court approved, but the petition for removal was denied.

Afterward the railway company answered in the case, denying generally and alleging that the injury resulted from the want of ordinary care by Dowell. It was averred that in consideration of the payment of $ 922.45 he released the railway company from all liability because of the injury, and like averments were made by Johnson in his separate answer. In the reply the circumstances accompanying the signing of the release and a certain receipt were set forth, and it was alleged that the releases were without validity because they were signed when Dowell was mentally and physically incapable of making a contract. The jury made special findings and returned a general verdict against both defendants, awarding Dowell damages in the sum of $ 15,000. The defendants appeal, and the first error assigned is upon the denial of the petition for removal.

The contention is that no cause of action was stated against Johnson and no joint cause of action alleged against both appellants, but that, as the petition did state a distinct and separable controversy between Dowell and the railway company, citizens of different states, the petition for removal should have been granted. It is argued that Johnson, being the agent and servant of the railway company, is not liable for mere acts of nonfeasance, and this appears to be based on the theory that agents are responsible only to their principals, and while they may be held for misfeasance, they are not liable to third parties for mere omission of duty. This contention overlooks the theory that a servant owes duties to third persons as well as to his master. A servant or employee of a corporation can not well escape liability for the nonperformance of a duty which he owes to an injured third party. The distinctions between liabilities of agents and servants for acts of nonfeasance and misfeasance, as well as their liability for the omission of their duties to persons other than their principals and masters, are fully discussed and the authorities cited in case notes appended to Mayer v. Thompson-Hutchison Building Co., 28 L.R.A. 433, Ward v. Pullman Co., 25 L.R.A. N.S. 343, and Hagerty v. Montana Ore Pur. Co. et al., 25 L.R.A. N.S. 356.

If it were granted that Johnson was not liable for mere nonfeasance, he would nevertheless be liable for the negligence charged against him in appellee's petition. The allegation is that he carelessly and recklessly ran down and injured appellee with an engine of which he was in charge. This amounts to a charge of violating his duty to appellee and of doing something to the latter's injury. Johnson's act was something more than a breach of contract with his master or an omission of duty to the railway company. It was a positive wrong to appellee--a misfeasance, and he can not be relieved from liability for it because of his contract relation with his master. (Mechem, Agency, § 572; 1 A. & E. Encycl. of L. 1132; 31 Cyc. 1359.)

The appellee's petition sets up the negligence of the company and direct negligent acts...