McFarland v. BF Goodrich Rubber Co.

• Decision Date: 13 February 1931
• Docket Number: No. 8874.,8874.
• Citation: 47 F.2d 44
• Parties: McFARLAND v. B. F. GOODRICH RUBBER CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

47 F.2d 44 (1931)

McFARLAND v. B. F. GOODRICH RUBBER CO. et al.

No. 8874.

Circuit Court of Appeals, Eighth Circuit.

February 13, 1931.

O. C. Mosman, of Kansas City, Mo. (Mosman, Rogers & Buzard, of Kansas City, Mo., Pross T. Cross, of Lathrop, Mo., and Don E. Black, of Kansas City, Mo., on the brief), for appellant.

Paul G. Koontz, of Kansas City, Mo. (Harris & Koontz, of Kansas City, Mo., on the brief), for appellee B. F. Goodrich Rubber Co.

Mertsheimer & O'Donnell, of Kansas City, Mo., for appellee A. M. Peterson.

Before STONE and BOOTH, Circuit Judges, and DEWEY, District Judge.

BOOTH, Circuit Judge.

This is an appeal from a judgment dismissing an action for want of prosecution after plaintiff had declined to proceed further in the action, his motion to remand the case to the state court having been denied. The action was for damages on account of personal injuries, and was commenced in the state circuit court of Jackson county, Mo., against the B. F. Goodrich Rubber Company and its foreman or manager, A. M. Peterson. A demurrer was interposed by Peterson in the state court on the ground that the complaint failed to state a cause of action against him. The action was removed by the Goodrich Company to the federal court May 15, 1929, on the alleged ground that the joinder of Peterson as a defendant was fraudulent, and on the further ground that even if a valid claim existed against defendant Peterson, there was a separable controversy between plaintiff and defendant Goodrich Company and diversity of citizenship existing between them. Plaintiff, in the motion to remand, denied the fraudulent joinder of Peterson, and alleged that the cause of action set up in the complaint was a joint one against the Goodrich Company and Peterson.

No evidence was taken on the motion to remand, but on July 1, 1929, the motion was denied on the sole ground that no cause of action was stated against defendant Peterson; and at the same time, the demurrer of Peterson to the complaint was sustained.

December 7, 1929, a motion was made by the Goodrich Company for a rehearing and reconsideration of the motion to remand in order that it might introduce evidence on the issues made up by the petition for removal and the motion to remand.

December 28, 1929, the motion for rehearing and reconsideration was denied, and on the same day, judgment was entered dismissing the case for failure on the part of the plaintiff to prosecute.

No controversy was made in the trial court on the question of diversity of citizenship between the plaintiff and the Goodrich Company, and none is made here.

Three questions, however, did arise in the trial court on the record touching removability of the cause: First, whether the complaint showed on its face that plaintiff attempted to state a joint cause of action against the Goodrich Company and Peterson; second, whether the facts stated in the complaint could, as a matter of law, constitute a joint cause of action against the two defendants; third, whether plaintiff had in fact, though not on the face of the complaint, fraudulently joined Peterson as a defendant in order to prevent removal. As to the first question, there was apparently no dispute in the trial court, and it was tacitly answered in the affirmative, and we think correctly so. As to the second question, the trial court held that the facts stated in the complaint could not constitute a joint cause of action against both defendants, nor any cause of action against defendant Peterson.

There was thus left a sole controversy (often called, we think inaccurately, a separable controversy) between plaintiff and the Goodrich Company; and this sole controversy being between parties of diverse citizenship, and the requisite amount being involved, the court retained jurisdiction and denied the motion to remand.

The third question involved an issue of fact, but the trial court refused to receive evidence thereon and determine the issue, such course being unnecessary by reason of the view taken on the second question.

The question before this court on the present appeal is whether the trial court correctly ruled on this second question.

Whether the facts stated in the complaint constituted a joint cause of action against both defendants is to be determined by the state law. C. & A. R. Co. v. McWhirt, 243 U. S. 422, 425, 37 S. Ct. 392, 61 L. Ed. 826; C., R. I. & P. Ry. Co. v. Whiteaker, 239 U. S. 421, 424, 36 S. Ct. 152, 60 L. Ed. 360; Ches. & O. Ry. Co. v. Cockrell, 232 U. S. 146, 152, 34 S. Ct. 278, 58 L. Ed. 544; C., R. I. & P. Ry. Co. v. Dowell, 229 U. S. 102, 113, 33 S. Ct. 684, 57 L. Ed. 1090; C., R. I. & P. Ry. Co. v. Schwyhart, 227 U. S. 184, 193, 33 S. Ct. 250, 57 L. Ed. 473; Southern Ry. Co. v. Miller, 217 U. S. 209, 215, 216, 30 S. Ct. 450, 54 L. Ed. 732; Ill. Cent. R. Co. v. Sheegog, 215 U. S. 308, 317, 318, 30 S. Ct. 101, 54 L. Ed. 208; Putnam Memorial Hospital v. Allen (C. C. A.) 34 F. (2d) 927, 929; Robbins v. Penn. Co. (C. C. A.) 245 F. 435, 437.

The portion of the complaint alleging negligence is set out in the margin.¹

Though the pleading is not commendable for conciseness or clarity, yet we think it is apparent that the items of negligence charged are three in number: Failure to furnish a sufficient number of men to do the work; a negligent order to plaintiff to do the work; a negligent assurance of safety to the plaintiff.

The vital question in the case is whether there was a joint liability stated in the complaint as to any of the items of negligence mentioned.

It is apparent that as to the first, viz., failure to furnish a sufficient number of men to do the work, the duty rested on the employer alone. This is conceded by counsel for plaintiff.

It is contended, however, that as to the other two items of negligence, negligently ordering plaintiff to do the work, and negligently assuring plaintiff that he could do the work with safety to himself, there was joint liability of the foreman and the Goodrich Company.

It seems to be settled under Missouri law that an employer and his vice principal will be jointly liable for negligence in ordering an employee to do a dangerous piece of work which results in his injury, or for negligence in assuring an employee of his safety in doing a dangerous piece of work which results in his injury. State ex rel. v. Falkenhainer, 316 Mo. 651, 291 S. W. 466; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S. W. 1062, 8 L. R. A. (N. S.) 929; McCarver v. St. Joseph Lead Co., 216 Mo. App. 370, 268 S. W. 687; Jewell v. K. C. Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703, 140 Am. St. Rep. 515; Tucker v. Hagan (Mo. App.) 300 S. W. 301, 304; Varas v. James Stewart & Co. (Mo. App.) 17 S.W.(2d) 651.

In the Jewell Case the court in its opinion said at page 206 of 231 Mo., 132 S. W. 703, 711:

"There was evidence introduced which tended to show that Sturges ordered respondent to perform his duties as catcher or quit his job, when informed of the existence of the peril caused by the absence of the protecting post mentioned in the evidence. So ordering respondent into such a place of danger, if it was a dangerous place, was a positive wrong or misfeasance on the part of Sturges, even though it be conceded that he was not an independent contractor, but simply an employee representing the appellant company in the mill department. For that wrong, if wrong it was, he is jointly liable with the company to respondent for the injuries sustained by him in consequence thereof."

Defendant, while conceding the effect of the foregoing decisions, yet contends that no liability attaches either to the employer or to the vice principal where the order or assurance relates to an act involving physical strength and which act the employee knows is beyond his own physical strength.

In examining this contention of defendant, two lines of Missouri cases must be considered. In one class fall those cases where the injuries complained of resulted solely from overexertion by the injured party. In these cases no liability attached to the employer though he or his vice principal had ordered the plaintiff to do the work and given him assurance of safety. See Hunter v. Busy Bee Candy Co., 307 Mo. 656, 271 S. W. 800; Lutgen v. Railway (Mo. App.) 294 S. W. 444, 445; Leitner v. Grieb, 104 Mo. App. 173, 77 S. W. 764; Haviland v. K. C., etc., Ry. Co., 172 Mo. 106, 72 S. W. 515; Petrilli v. Swift & Co., 216 Mo. App. 626, 260 S. W. 516, 518.

In the other class fall those cases where the injuries complained of resulted from the failure of the employer to furnish sufficient help, which result he should have anticipated; or the injuries were caused by some unforeseen but proximate cause coupled with the negligent failure to furnish sufficient help. In these cases, liability attached to the employer and to the vice principal who gave the order to plaintiff to do the work, or who gave to plaintiff the assurance of safety. See Bowman v. K. C. Electric Light Co. (Mo. App.) 213 S. W. 161; Meily v. St. L. & S. F. R. Co., 215 Mo. 567, 114 S. W. 1013; Tull v. K. C. S. Ry. Co. (Mo. App.) 216 S. W. 572; Fogus v. C. & A. R. Co., 50 Mo. App. 250; Levecke v. Curtis & Co. Mfg. Co., 197 Mo. App. 262, 193 S. W. 985; Smith v. Greer, 216 Mo. App. 155, 257 S. W. 829...