Floyt v. Shenango Furnace Co.

• Citation: 186 F. 539
• Parties: FLOYT v. SHENANGO FURNACE CO. et al.
• Decision Date: 29 April 1911
• Court: U.S. District Court — District of Minnesota

186 F. 539

FLOYT v. SHENANGO FURNACE CO. et al.

United States Circuit Court, D. Minnesota, Fifth Division.

April 29, 1911

J. De La Motte, for plaintiff.

Washburn Bailey & Mitchell, for defendants.

AMIDON District Judge.

This cause came on to be heard upon the motion of the plaintiff to remand the case to the state court, and was heard upon the complaint and the petition filed by the defendant Shenango Furnace Company for the removal of the cause to the federal court.

It appears from the complaint that the defendant Shenango Furnace Company, a foreign corporation, is engaged in operating an underground mine, and in connection therewith employed what is known as a 'ladderway' leading from one level of the mine to another. The workmen were required to pass over this ladderway in the performance of their duty and the complaint charges that the defendant failed to perform its duty to maintain this appliance in a reasonably safe condition. The complaint further charges that the defendant James Hogdon is a citizen of the same state as the plaintiff. He is known as a 'mining captain,' and was charged with the supervision of the mine and the workmen engaged therein, and that it was also his duty to see that the appliances used in the mine were in a reasonably safe condition. The only negligence charged against him is simply nonfeasance, in that he failed to perform the positive duty of the master to properly inspect and repair the ladderway. Upon well-established principles of the common law, Hogdon was not liable to third parties or coemployes for nonfeasance. For that he is liable only to his employer. Bryce v. Southern Ry. Co. (C.C.) 125 F. 959; Mechem on Agency, Secs. 569, 573; Greenberg v. Whitcomb Lumber Co., 90 Wis. 231, 63 N.W. 93, 28 L.R.A. 439, 48 Am.St.Rep. 911; Murray v. Usher, 117 N.Y. 542, 23 N.E. 564; Drake v. Hagan, 108 Tenn. 265, 67 S.W 470.

When the complaint thus discloses upon its face that the plaintiff has no cause of action against the employe who is made defendant, the cause is removable by the other defendant, if the proper diversity of citizenship exists between that defendant and the plaintiff. Marach v. Columbia Box Co. (C.C.) 179 F. 412; Lockard v. St. Louis & San Francisco R.R. Co. (C.C.) 167 F. 675; Chicago, R.I. & P. Ry. Co. v. Stepp (C.C.) 151 F. 908.

The case of Wecker v. National Enameling Co., 204 U.S 176, 27 Sup.Ct. 184, 51 L.Ed. 430, settles the question, that has for some time been in doubt, that when an employe is joined by the plaintiff as co-defendant with the employer, and it is made to appear that the plaintiff in fact has no cause of action against such employe, and the circumstances are such that the plaintiff must have known that he had no cause of action when he made him a defendant, and that such employe is joined as a defendant solely for the purpose of defeating the right...