Hollifield v. Southern Bell Tel. & Tel. Co.

• Decision Date: 19 December 1916
• Docket Number: 508.
• Parties: HOLLIFIELD v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. ET AL.
• Court: North Carolina Supreme Court

90 S.E. 996

172 N.C. 714

HOLLIFIELD v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. ET AL.

No. 508.

Supreme Court of North Carolina

December 19, 1916

Brown J., dissenting.

Appeal from Superior Court, McDowell County; Justice, Judge.

Action by W. E. Hollifield against the Southern Bell Telephone & Telegraph Company and J. C. Hollifield. From a judgment for plaintiff against both defendants, the telephone company appeals. No error.

On petition to remove cause to federal court for fraud in joinder of resident defendant, state court does not hear proof of fraud, and pass on issue, which is left for other court, but this rule applies only as to such issues of fact as control and determine right of removal.

Motion to strike testimony, even if incompetent, was within sound discretion of trial court.

This action was brought to recover damages for personal injuries alleged to have been caused by the joint negligence of the defendants. Plaintiff alleged that on August 1, 1913, he was employed by the defendant company to load the cars of the Carolina, Clinchfield & Ohio Railway Company with telephone poles, 50 feet in length and from 18 inches to 2 feet in diameter at one end and 6 to 10 inches at the other; that the bark had been peeled from the poles, and they were not only very heavy, but "hard to handle with hand power only"; that it would require a dozen men to load the cars with safety; and that the poles are sometimes crooked which makes them unwieldly and difficult to lift and place in their proper position without as many as 15 or 20 men to do the work. Plaintiff further alleges:

"That he was assigned by the defendant telephone and telegraph company, through its foreman and vice principal, the said J. C. Hollifield, to the work of loading upon cars telephone poles 50 feet long, of the character and kind hereinbefore described, with 4 other men, and said foreman who at times assisted in the work, and that plaintiff and the 4 other men with whom he was assigned to work were obliged, with the assistance of said foreman at times, to load the poles upon cars, and to place the poles in position by moving them about and rolling them over upon the cars, and that such number of men was insufficient, and that the defendant company knew, and that the defendant J. C. Hollifield knew, or that each of them ought to have known, that such number of men was insufficient to handle, load, and place the poles as required by the defendant, and that with such knowledge the defendant company, and the defendant J. C. Hollifield negligently, and with reckless indifference to the safety of those engaged in the work, assigned plaintiff, with such insufficient number of men, to the work of loading said poles, and in so assigning him to work with such insufficient number of men in the loading and handling of said poles negligently failed to provide for plaintiff a reasonably safe place and reasonably safe surroundings and conditions under which to do the work so assigned to him; that while plaintiff, who had had no previous experience at such work, and who had had no warning whatsoever from the defendants, or either of them, as to the dangers of the work, on the first day of his employment, was assisting, to the best of his skill and ability in the loading and placing of said poles, he was negligently ordered and required by the defendant J. C. Hollifield, who had charge of and was directing and superintending the work for the defendant telephone and telegraph company, clothed with the power and authority conferred upon him by said company to employ and discharge laborers who declined or omitted to obey the orders and perform the work required of them, and was therefore ordered and required by the defendant company to cross over the pole, after it had been rolled upon a flat car, and hold against the end of the pole, while the other men, under the orders and requirement of the said J. C. Hollifield as foreman, engaged in an effort to roll the pole over, in the direction in which plaintiff was standing, to place the same in position with other poles which had been loaded, plaintiff being so required to hold against said pole to prevent the end which he was attempting to hold from going beyond the point, alongside the other poles, to which said foreman desired to have it placed; that said pole was very heavy and was very crooked and so hard to handle by the few men engaged in handling it that it was almost impossible with the utmost exertion which the men could possibly employ, and with great and unreasonable strain upon their part, to roll it over and move it, and that it was impossible for the men who were required to handle this pole to properly handle and so control it as to regulate its movements with any reasonable degree of safety to the men engaged in an effort to handle and move it; that while plaintiff was so engaged by the negligent requirement of the defendants and each of them, in holding against one end of said pole, the other men with great effort and exertion succeeded in lifting and rolling up the crooked part of said pole from the floor of the car in order to roll the pole over, and the heavy crooked part of the pole, which was raised up some two or three feet from the floor of the car, suddenly, and with great force, fell over upon the floor of the car in the direction of and against plaintiff and the tool with which he was working, and violently struck him and hurled him off and beyond the car against a pile of logs and timbers upon the ground, and injured him, as hereinafter alleged."

The telephone company filed a petition for removal of the case to the United States District Court, upon the ground that it is a nonresident of this state and that J. C. Hollifield was fraudulently joined with it as a defendant for the purpose of preventing a removal to said court, and, further, that the complaint does not allege any joint cause of action against the defendants, but presents a separable controversy as to the telephone company which entitled it to the removal. The petitioner further alleged that the duty of furnishing a safe place for the plaintiff to work and a sufficient number of hands to assist the plaintiff was not such as defendants owed jointly to him, but that it was the sole duty of the petitioner. Petitioner further alleged:

"That the only negligence alleged in said complaint is the negligence of your petitioner in failing to furnish to the plaintiff a sufficient number of men to perform the work in which plaintiff was engaged, in failing to furnish to the plaintiff a reasonably safe and suitable place in which to work, and in failing to warn the plaintiff of the dangers to which he might be exposed while performing this work; that if these duties were owed to the plaintiff they were not owed by your petitioner's servants or foreman; that it was no part of the duty of the said J. C. Hollifield to furnish the plaintiff with a safe and suitable place in which to do his work, or to warn the plaintiff of any danger to which he might be subjected while performing said work, and it does not appear from said complaint that the said J. C. Hollifield failed or neglected to perform any duty, or duties, which he owed to the plaintiff, which failure proximately caused the plaintiff's injury; and your petitioner expressly avers that the said J. C. Hollifield did not fail or neglect to perform any duty, or duties, which he owed to the plaintiff; and petitioner expressly denies that the plaintiff's injury, if any he sustained, was proximately caused by any negligence or failure of duty on the part of the said J. C. Hollifield; that the said J. C. Hollifield was simply the boss of the gang of men in which the plaintiff was working, and as such boss assisted the plaintiff and the other employés in loading said poles, and was working with the plaintiff, assisting him, at the time the plaintiff alleges he was injured, and was, as your petitioner is advised and believes, a fellow servant of the plaintiff for whose negligence your petitioner was not and cannot be held responsible; and your petitioner avers that if the plaintiff was injured by the turning of the pole, as alleged in the complaint filed in this cause, the turning of said pole was not the result of any act on the part of the said J. C. Hollifield, as the said J. C. Hollifield was not at that time engaged in turning said pole but was simply assisting the plaintiff in holding the same."

Petitioner also alleges that the defendant J. C. Hollifield has not employed counsel to defend him; that he is a son of plaintiff and is insolvent, and that plaintiff has no intention of prosecuting this suit against defendant Hollifield; and that the allegations against him were made for the sole purpose of preventing a removal of the case to the federal court, and in pursuance of a conspiracy between plaintiff and his son for that purpose. The court refused to remove the case and the telephone company excepted. At the trial of the case before a jury, a verdict was rendered for the plaintiff as follows:

"(1) Was the plaintiff injured by the negligence of the defendant Southern Bell Telephone & Telegraph Company, as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff by his own negligence contribute to his injury as alleged in the answer? Answer: No.

(3) Did the plaintiff assume the risk of injury as alleged in the answer? Answer: No.

(4) What damage, if any, has the plaintiff sustained? Answer: $5,000.00."

Judgment was entered upon the verdict against both defendants, and the telephone company, having noted its exceptions, appealed to this court.

A. Hall Johnston, of Asheville, A. S. Barnard, of New York City, and B. J. Clay, of Atlanta, Ga., for appellant.

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