Enos v. Kentucky Distilleries & Warehouse Co.

• Decision Date: 11 July 1911
• Docket Number: 2,089.
• Parties: ENOS v. KENTUCKY DISTILLERIES & WAREHOUSE CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

189 F. 342

ENOS v. KENTUCKY DISTILLERIES & WAREHOUSE CO. et al.

No. 2,089.

United States Court of Appeals, Sixth Circuit.

July 11, 1911

A. E Richards (O'Doherty & Yonts, on the brief), for plaintiff in error.

E. P Humphrey (Bennett H. Young and Marion P. Humphrey, on the brief), for defendants in error.

Before SEVERENS and KNAPPEN, Circuit Judges, and DENISON, District judge.

KNAPPEN Circuit Judge.

The plaintiff in error brought suit in the circuit court for Jefferson county, Ky., for the recovery of damages on account of injuries, resulting in death, received by decedent in falling down an open elevator shaft in the John G. Roach Distillery at Louisville, Ky., while decedent was employed therein. The suit was brought against the defendants above named, with whom were joined George A. McCran, W. J O'Hearn, and Martin Bittner. The Distilleries & Warehouse Company is a New Jersey corporation and the owner of the distillery. Julius Kessler & Co. is a West Virginia corporation which was operating the distillery at the time of the accident in question. The whisky was being made in the name of Julius Kessler (who was a citizen of Illinois) under a government regulation requiring the brands to be taken out in the name of individuals. Shipman's relation is immaterial. He was a citizen of New York. Until a short time before the accident, the whisky had been made in McCran's name. O'Hearn and Bittner were, respectively, the superintendent and foreman of the distillery at the time of the accident. Both they and McCran were citizens of Kentucky. Some weeks before the accident an elevator which operated from the basement to the sixth floor of the distillery was taken out for repairs. The guard rails which had surrounded the elevator opening on the fifth floor were taken away at the same time. In connection with the work of repairing a plank had been in use, extending across the opening of the shaft on the fifth floor. At the time of the accident decedent was engaged, at the opening of the shaft on the fifth floor, in fastening a tackle to barrels, preparatory to lowering the same to the basement by means of a block and tackle operated by workmen upon the sixth floor. In connection with this work the decedent and the plank across the opening of the shaft in some way fell through the opening to the bottom of the shaft. Decedent's death was caused by the injuries thus received.

The defendants were alleged to be jointly and concurrently negligent, first, in removing the elevator and substituting the block and tackle therefor; second, in allowing the loose plank to lie at the elevator shaft opening, and in the absence of sufficient light; and, third, in failing to provide a guard or protection around the shaft opening.

The defendant corporations and the individual defendants Kessler and Shipman joined in a petition for removal of the cause to the federal court, alleging that no cause of action was stated against the resident defendants McCran, O'Hearn, and Bittner; that the allegations charging these defendants with negligence were untrue, and were known by the plaintiff to be untrue when she instituted her suit; that she did not then and does not now expect to prove any of said allegations or to obtain a verdict and judgment against the resident defendants named; and that the latter were joined with the nonresident defendants for the sole and fraudulent purpose of defeating the removal of the cause. The state court approved the removal bond, but refused to order the removal. The transcript being filed in the federal court, a motion to remand was made, issue being joined upon the material allegations in the petition for removal. Testimony upon the issue thus raised was presented by oral examination of witnesses. The circuit court found that McCran's connection with the distillery had entirely ceased previous to the accident, and that he was thus fraudulently joined for the purpose of preventing a removal of the cause.

The court further found that the plaintiff had no right to recover against either O'Hearn or Bittner, this conclusion being based upon the propositions that the place where decedent was working became unsafe, if at all, by the negligent performance of the work in hand; that decedent had assumed the risk, and that it was fairly open to conjecture that his negligence was the cause of the accident; that Bittner's duty was not shown to include the putting in of an elevator instead of a block and tackle; and that O'Hearn was absent from the warehouse on the day of the accident, and gave no directions and did no act which would entitle the plaintiff to believe that she had any cause of action against him. The court further expressed the opinion that had plaintiff before commencing suit made earnest inquiry as to the exact facts she would have so discovered, and that she had no right to shut her eyes and refrain from such inquiry, and that from such facts and from her failure to testify as to her good faith in joining O'Hearn and Bittner as defendants it was fairly presumable that they were joined as defendants with the like fraudulent purpose of preventing removal. The motion to remand was accordingly denied. At the conclusion of a trial upon the merits verdict and judgment were directed in favor of the defendants. The assignments argued here relate to the refusal to remand and to the direction of verdict and judgment.

Assuming that the petition for removal stated sufficient ground therefor, upon the plaintiff's denial of the allegations of fraudulent joinder, the burden of proof was upon the removing defendants to establish the fact of fraudulent joinder. See Hunter v. Illinois Central R.R. Co., 188 F. 645 (decided by this court June 6, 1911). The parties recognized this condition, the only testimony upon the hearing of the motion to remand being presented by defendants.

It affirmatively appeared that O'Hearn and Bittner were in the employ of Kessler & Co.; that...