Epperson v. Midwest Refining Co.

• Decision Date: 12 November 1927
• Docket Number: No. 7859.,7859.
• Citation: 22 F.2d 622
• Parties: EPPERSON v. MIDWEST REFINING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

22 F.2d 622 (1927)

EPPERSON v. MIDWEST REFINING CO.

No. 7859.

Circuit Court of Appeals, Eighth Circuit.

November 12, 1927.

George W. Ferguson and I. G. McCann, both of Casper, Wyo., for plaintiff in error.

A. K. Barnes, of Denver, Colo. (Frederick D. Anderson, of Denver, Colo., and John B. Barnes, Jr., of Casper, Wyo., on the brief), for defendant in error.

Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges.

POLLOCK, District Judge.

This action was brought by plaintiff in error in a court of the state against the present defendant in error and a corporation of the state of Wyoming called the Wyoming Iron Works Company (hereinafter called the "Iron Company"). For convenience, the parties will be referred to as on the record in the trial court.

The purpose of the action was to recover a judgment for damages for personal injuries received by plaintiff while at work as an employé of the iron company repairing a still in the plant of the refining company by reason of gas in some manner coming into the still or remaining in the still in which he was working, which, being ignited in some manner, caused an explosion from which serious injuries were received by plaintiff. Before trial, and in timely way and manner, the case was removed by the refining company into the federal court on the ground of a separable controversy between plaintiff and the refining company. Motion to remand was denied, and this is one of the errors of which complaint is made.

An examination of the record discloses no error in overruling this motion to remand, and this for two reasons: First, it appears with reasonable certainty from the record the only causes of action plaintiff had as against the iron company, a domestic corporation, was under the compensation laws of the state of Wyoming, of which law this court takes judicial notice. Such remedy by the express terms of the act is exclusive of all others.

Again, the cause of action pleaded against the refining company is one arising at the common law. That company was not amenable to or liable under the workmen's compensation law of the state, hence, as the only cause of action pleaded or attempted to be pleaded is one for which the refining company alone could be adjudged liable in law there was but a single cause of action pleaded against a single defendant, the refining company, and it being a citizen of a foreign state (Maine), the cause was properly removed into the federal court. Hukill v. Maysville, etc., R. Co. (C. C.) 72 F. 745; Chattanooga, etc., R. Co. v. Cincinnati, N. O. & T. R. Co. (C. C.) 44 F. 456; Bryce v. Southern R. Co. (C. C.) 122 F. 709; Floyt v. Shenango F. Co. (C. C.) 186 F. 539; McAllister v. Chesapeake & O. R. Co. (D. C.) 198 F. 660; Richardson v. Southern, etc., Co. (D. C.) 209 F. 949.

Again, were both defendants liable to an action at the common law, yet, as pleaded in this case, all the actionable negligence charged as well as pleaded is against the refining company alone, it must be remembered the property in which the plaintiff was engaged to work was the property of the refining company although the iron company, the employer of plaintiff, was doing the work of repairing the still. In charging negligence the plaintiff alleges in paragraph 6 of his petition, as follows:

"VI. That while so employed and engaged in said work for his said employer the said defendant, the Midwest Refining Company, carelessly and negligently caused and permitted a highly explosive gas to back into, escape into, run into and to fill said still numbered twenty-seven (27), without the knowledge or consent of plaintiff, which said gas without warning instantaneously exploded.

* * * * * * * * * * *

"VIII. That said injuries to plaintiff so caused by the carelessness and negligence of the defendant, the Midwest Refining Company, in said explosion are of a permanent character."

True, in paragraph 9 the pleader does charge as follows:

"IX. That said explosion and injuries to plaintiff were caused by the negligence and carelessness of the said defendants, each and both of them, in permitting said gas to so back into, enter and fill said still while the plaintiff was at work therein."

But the pleading taken in the light of the prior allegations found in the petition limiting the negligence complained of alone to the refining...