Galeotti v. Diamond Match Co.

• Decision Date: 11 April 1910
• Docket Number: 1,530.
• Citation: 178 F. 127
• Court: U.S. District Court — Northern District of California
• Parties: GALEOTTI et al. v. DIAMOND MATCH CO. et al.

178 F. 127

GALEOTTI et al. v. DIAMOND MATCH CO. et al.

No. 1,530.

United States Circuit Court, N.D. California.

April 11, 1910

Ambrose Gherini, for plaintiffs.

Chickering & Gregory and A. F. Jones, for defendants.

VAN FLEET, District Judge (orally).

This is a motion to remand. The action was commenced in the state court by the widow and minor children of one Agostino Galeotti, deceased, against the defendants, a nonresident corporation, and its superintendent, a resident of this district, sued jointly, to recover damages resulting from the death of the plaintiffs' decedent, alleged to have been caused by the negligence of the defendants. The defendant corporation removed the cause to this court, upon the theory as disclosed by its petition, that in the first place the complaint states no cause of action against the superintendent; but, secondly, if it does, it is wholly separable and apart from that alleged against the corporation, and that therefore the defendants have been improperly joined, and for that reason the corporation cannot be debarred of its right to invoke the jurisdiction of this court on the ground of diversity of citizenship existing between that defendant and the plaintiffs. The motion to remand is based upon the claim that the action is joint in character, and hence that no diversity of citizenship exists under the statute.

The material facts alleged in the complaint are that the defendant corporation was engaged in operating a sawmill at Sterling City, in the county of Butte, in this state; that William F. Spring was superintendent of said sawmill, and that 'the defendants' employed said Agostino Galeotti to work for said corporation at said mill, and put him to work thereat in a place over which a chute was being used at the time for conveying and transferring heavy slabs of wood that this chute was wholly unguarded and unprotected, and no means employed to keep such slabs in their course within the chute, in consequence whereof large and heavy slabs would frequently escape and fall at the place where the deceased was so put to work; that said defendants knew the dangerous character of the situation, but wholly failed to warn deceased thereof, and that the latter did not know, and had no means of knowing, that the place was not safe; and it is alleged that while deceased was at work at said place on November 25, 1908, a large and heavy slab of wood escaped from said chute and fell upon and killed him, to the damage of plaintiffs, etc.

The corporation contends that these facts show only a violation of its duty as the master to provide a safe and convenient place for the performance of the labor at which the decedent was employed, and disclose no responsibility on the part of its codefendant, the superintendent; that the facts show no active or affirmative negligence upon the part of either defendant, but purely a passive one, in the nature of a nonfeasance, for which, if both defendants are responsible they can in no event be held jointly liable; and that therefore, as stated, they are improperly joined as defendants.

In the first place, I am unable to coincide with this construction of the pleading. To my mind, the charge that the decedent was put at work in a highly dangerous situation, in ignorance of its dangers, and without warning by the defendants, who had knowledge thereof, is the allegation of more than a mere passive or negative act. It is not a mere nonfeasance. It partakes of the nature of a positive wrong, and is a misfeasance, for which all who directly participated would be liable.

But independently of this consideration, and assuming the nature of the acts complained of to be as claimed by the defendant corporation, the case does not, in my judgment, disclose a separable controversy between the corporation and the plaintiffs, which will, under the law, entitle that defendant to have the cause retained in this court. It is apparent from the complaint that plaintiffs have sought and intended to make the action a joint one against the defendants, since they are charged conjunctively with the acts through which the injury resulted. The questions in cognate form as to the identity of responsibility of the superior and his agent for negligence, and under what circumstances they may be held jointly liable, and the effect of that question upon the right of the parties as to removal to this court, have been very fully considered in a number of cases. While they have given...