Kelly v. Robinson

• Decision Date: 31 January 1920
• Docket Number: 5031.
• Parties: KELLY v. ROBINSON et al.
• Court: U.S. District Court — Eastern District of Missouri

262 F. 695

KELLY v. ROBINSON et al.

No. 5031.

United States District Court, E.D. Missouri.

January 31, 1920

Safford & Marsalek, of St. Louis, Mo., for plaintiff.

Holland Rutledge & Lashley, of St. Louis, Mo., for defendants FARIS, District Judge.

Plaintiff's motion to remand is bottomed upon the fact that defendants Robinson and Johnson are citizens of the state of Missouri of which state the plaintiff is likewise a citizen, and that there is lacking, therefore, that diversity of citizenship whereby jurisdiction of the case is conferred on this court. Defendant Federal Lead Company insists that the controversy is a separable one, and that the existence of a diversity of citizenship as between plaintiff and the corporate defendant (against whom alone, it is urged, a cause of action is stated in the petition) confers jurisdiction upon this court.

The question mooted must be resolved by resort to the allegations of the petition. Plaintiff sued in a state court for the alleged negligent killing of her husband, who came to his death, as it is averred, by reason of certain negligent omissions of duty owed by defendants to plaintiff's decedent. This negligence is set out in the petition thus:

'That * * * defendants herein, in the operation of said mine negligently employed and provided an insufficient number of miners to inspect and keep safe the roof, or what is commonly known as the 'back' of said mine, negligently caused and permitted loose, drummy roof or 'back' to be and remain in said mine, in shaft No. 4, stope C 345, above the point where Robert N. Kelly received the injuries herein alleged, and negligently caused and permitted Robert N. Kelly, in performing his duties to defendant Federal Lead Company, to be and remain in said mine, under said loose, drummy roof or 'back,' and defendants by said negligence directly and proximately caused the premises at and near the point where Robert N. Kelly received said injuries, when and for a long time before said injuries were received, to be and remain an unsafe and dangerous place to work, and defendants, by said negligence, on the day and year and in the county and state last aforesaid, directly and proximately caused and permitted the ground and rock of said roof or 'back' in said mine in which defendants were then engaged in mining lead, a valuable mineral, to fall upon and strike and injure and thereby kill said Robert N. Kelly, who was then in the employ of defendant Federal Lead Company, and acting within the scope of said employment.'

The petition avers that defendants Robinson and Johnson, at the time plaintiff's decedent came to his death, were respectively superintendent of defendant Federal Lead Company's mines and one of the mine captains thereof, and as such, it is further averred, they were--

'authorized and required to provide a sufficient number of competent miners to inspect and keep safe the roof, or what is commonly called the 'back' of said mine. ' (Italics are mine.)

As bearing upon the good faith of plaintiff in joining the individual defendants, affidavits were filed both asserting and denying the financial responsibility of the latter to respond in damages to plaintiff. But in the last analysis the financial capacity of the individual defendants is of negligible value in determining the question now before the court. For obviously, if there is in fact a joint liability against both the corporate and individual defendants, the motive of the plaintiff in proceeding to enforce such liability becomes practically immaterial. Chicago, etc., Railway Co. v. Schwyhart, 227 U.S. 184, 33 Sup.Ct. 250, 57 L.Ed. 473. For if the individual defendants owed any duty to the plaintiff's decedent, which they negligently performed, they are properly joined, and this motion ought to be sustained, and the case remanded to the state court, whence it came.

Stated in its ultimate terms, the duty alleged to have been neglected by defendants was that of furnishing plaintiff's decedent a safe place to work. It needs neither exposition, argument, nor citation upon the proposition that primarily it was the duty of the corporate defendant, and not that of the individual defendants, to provide for plaintiff's decedent such safe place to work. If such place was unsafe, or if it became unsafe, and was allowed to so remain by reason of the nonfeasance of the individual defendants, as contradistinguished from their misfeasance, such defendants would not be liable to the plaintiff. Whether the duty alleged to have been neglected by the...