Dudley v. Community Public Service Co.

• Decision Date: 15 January 1940
• Docket Number: No. 9254.,9254.
• Citation: 108 F.2d 119
• Parties: DUDLEY v. COMMUNITY PUBLIC SERVICE CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

108 F.2d 119 (1939)

DUDLEY v. COMMUNITY PUBLIC SERVICE CO. et al.

No. 9254.

Circuit Court of Appeals, Fifth Circuit.

December 6, 1939.

Rehearing Denied January 15, 1940.

Russel H. Markwell, of Galveston, Tex., for appellant.

Brantly Harris and M. L. Cook, both of Galveston, Tex., for appellees.

Before FOSTER, SIBLEY, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The plaintiff-appellants, widow and dependent child of J. T. Dudley, sued Community Public Service Company and P. J. Short, its line construction superintendent and foreman, for the homicide of Dudley through gross negligence, claiming $50,000 exemplary damages under Art. 16, Sec. 26, of the Constitution of Texas. Vernon's Ann.St. The Company removed the suit to the federal court on allegations that plaintiffs and Short are citizens of Texas but itself is a corporation of Delaware, and that as plaintiffs well knew it was insured under the Texas Workmen's Compensation Law, Vernon's Ann.Civ.St.Tex. art. 8306 et seq., by the provisions of which there is no right of action against a co-employe for injury or death; so there could be no right of action against Short, and he was joined fraudulently to prevent removal; and moreover the petition showed on its face that the negligence alleged against Short was mere non-feasance which would not render him liable to suit, but his master alone would be liable therefor. The plaintiffs moved to remand, denying fraudulent joinder and asserting a bona fide demand against Short, but not denying that the Company was under the Compensation Law. Evidence was offered tending to show that Short was foreman over Dudley, present and directing the work in hand when Dudley was electrocuted by some of the equipment coming into contact with a power wire of the Company beneath which they were working. Remand was denied. Plaintiffs refused to proceed, denying the jurisdiction of the court, and the court dismissed the action expressly pursuant to Rule of Civil Procedure 41 (b) 28 U.S.C.A. following section 723c. The appeal specifies as error the dismissal and the refusal to remand.

The dismissal for failure to prosecute was of course not error if the court had jurisdiction of the case. There was nothing else for the court to do. It is, however, a final judgment disposing of the action and is appealable, and serves to bring under review the refusal to remand which is the real matter of complaint. Gay v. Ruff, 292 U.S. 25, 54 S.Ct. 608, 78 L.Ed. 1099, 92 A.L.R. 970, affirming 5 Cir., 67 F.2d 684.

On its face the action was not removable. It was a joint suit against a master and an agent or servant in charge of the work for negligence alleged to be gross in the conduct of the work, causing the electrocution of Dudley. According to the petition Short was not only the vice-principal of the master, charged with the safety of the equipment and tools, with the instruction of workmen, with the hiring and discharge of the workmen, and supervision of the construction work in hand, but was also at work as foreman over Dudley. Short, Dudley, and four others, under Short's direction and control, were replacing a pole under a power wire, using a truck equipped with a crane to raise the pole. Short did not de-energize the power wire, or provide any safeguard against the pole touching it, or warn Dudley or instruct him about the danger. The pole touched the wire and the current killed Dudley, who was working about the truck. The formal charges of negligence include the failures to have proper equipment, to de-energize the power line, to warn Dudley, to ground the truck, to have rope guards to prevent the pole touching the wire, and negligence "in requiring the deceased to work in and around a power line energized with 11000 volts at a time when the ground was damp and other conditions were such as to render the work extremely hazardous, without taking any precaution for the safety of the deceased." We think it fairly appears that Short was active in the whole transaction, that he chose the time and place and manner of the work and directed Dudley what to do, himself assisting. This is not mere non-feasance, which is doing nothing; but it is misfeasance, the doing of things in a wrong and negligent manner, without the care and precaution that would have made safe what he ordered and did. Short might be held personally liable. Kenney v. Lane, 9 Tex.Civ.App. 150, 36 S.W. 1063; Ellis v. McNaughton, 76 Mich. 237, 42 N.W. 1113, 15 Am.St.Rep. 308; Lough v. Davis & Co., 30 Wash. 204, 70 P. 491, 59 L.R.A. 802, 94 Am.St.Rep. 848; Osborne v. Morgan, 130 Mass. 102, 39 Am.Rep. 437.

But we must take as true the fact, not stated in the petition but squarely asserted in the removal proceedings and not denied in the motion to remand or in the evidence introduced, that this work was proceeding under the Texas Workmen's Compensation Law. Texas Rev.Stats. Art. 8306. Section 3 as amended provides: "The employés of a subscriber * * * shall have no right of action against their employer or against any agent, servant or employé of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such subscribing employer or his agent, servant or employé for damages for injuries resulting in death." The general purpose is plain to confine an injured employe, or the representatives of one who is killed in the employment, to the compensation provided by the Act. If this were the whole applicable law, Dudley's representatives could sue neither Short nor the common employer. But the Constitution of 1875, Art. 16, Sect. 26, provides: "Every person, corporation or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages,...