Richardson v. Southern Idaho Water Power Co.

Decision Date12 November 1913
Citation209 F. 949
PartiesRICHARDSON et al. v. SOUTHERN IDAHO WATER POWER CO.,
CourtU.S. District Court — District of Idaho

Frawley & Block and Luther W. Tennyson, all of Boise, Idaho, for plaintiffs.

Booth Lee, Badger, Rich & Parke, of Salt Lake City, Utah, for defendant Jas. A. Green & Co.

DIETRICH District Judge.

The action was brought to recover damages for the death of Walter W. Richardson, who was killed on February 26, 1913, by an electric shock, received while he was employed as a painter upon the new power house of the Southern Idaho Water Power Company at American Falls, Idaho; it being alleged that the accident was due to the joint negligence of the several defendants. The plaintiffs, who are the heirs of the deceased, and the defendant Day, are residents of the state of Idaho; the other defendants, four corporations, are nonresidents. The action was commenced in the state district court, and upon the petition of the defendant James A. Green & Co. it was removed here. Upon behalf of the removing defendant it is contended that the complaint exhibits a separable controversy between it and the plaintiffs, and it is further alleged that the defendant Day was fraudulently joined as a defendant for the purpose of defeating the jurisdiction of this court. The plaintiffs filed a reply to the petition for removal, traversing the averments of fraudulent joinder; but the issue thus presented was, at the hearing of the motion to remand, submitted upon the face of the record, without other evidence.

It is shown by the complaint that the defendant Southern Idaho Water Power Company, being the owner of a power site at American Falls, employed the defendant James A. Green & Co. to construct a power house, and employed the General Electric Company to install therein the necessary machinery for generating and transmitting electric current. It does not appear very clearly just what the relation of the defendant Lynch-Cannon Engineering Company was to the project, but apparently it was associated in some manner with the General Electric Company in installing the machinery. The construction of the power house and the installation of the machinery were carried on concurrently, and, just prior to the accident, Richardson, who was in the employ of James A Green & Co., was directed by its superintendent, W. F. Day to paint the roof on the higher portion of the power house. In order to reach this roof it was necessary for him, and he was directed by his employer, to pass over the roof of the lower section of the building, which latter roof was constructed of concrete, reinforced with steel. Coming from an existing generating plant belonging to the power company, and penetrating the roof, and connecting with the machinery inside, were three high-tension wires, over which the defendants, other than Green & Co. and Day, had caused a current of high voltage to be transmitted, for the purpose of testing out the new machinery. These wires were not insulated at the point where they passed through the roof of the power house, and as a consequence, it is claimed, the steel reinforcement of the concrete roof became charged, and when Richardson stepped upon it he received the fatal shock. It is averred that the roof was negligently constructed, and that the wires were negligently carried through the same without insulation, and that all of the defendants knew, or by reasonable care should have known, of its dangerous condition, whereas Richardson was, without any want of care upon his part, ignorant thereof.

The objection to the sufficiency of the removal proceedings to confer jurisdiction assumes two phases, one involving the relation of the responsibility of Green & Co. for the accident to that of its superintendent, Day, and the other involving the relation of the responsibility of Green & Co. to that of the other defendant corporations. In the first place, both the plaintiffs and Day being residents of this district, the case does not present the requisite diversity of citizenship, unless Day can be disregarded as a defendant upon the ground that he is merely a nominal party. But a ruling in favor of the removing defendant upon this point is not in itself sufficient upon which to predicate the right of removal. It being a rule of law that all of the nonresident defendants to a controversy must join in the petition for removal, and the petition here being by Green & Co. alone, even if we disregard the presence of Day, the proceedings do not operate to confer jurisdiction, unless it be held that there is involved a controversy between Green & Co. and the plaintiffs which can be fully determined without the presence not only of Day, but of each of the other defendant corporations. If therefore the complaint exhibits a joint cause of action against Green & Co. and any other one of the defendants, the motion to remand must be allowed.

While the question is not entirely free from doubt, I am inclined to the view that, were Green & Co. and Day the only parties defendant, the cause should be retained upon the ground that Day is, under the allegations of the amended complaint, only a nominal party. He is charged with no acts of misfeasance, no acts of positive wrong, contributing to Richardson's death, but only with failure to discharge his duty to his employer. Green & Co.'s negligence, if any there be, consists in its failure to use proper care in providing a safe place for Richardson in which to work. Day owed no duty to Richardson in this respect; his obligation was to his employer alone. Kelly v. Chicago & A. Ry. Co. (C.C.) 122 F. 289; Marach v. Columbia Box Co. (C.C.) 179 F. 412; Floyt v. Shenango Furnace Co. (C.C.) 186 F. 539. The complaint therefore fails to state a cause of action against Day.

Now authority is not wanting for the proposition that, if the complaint fails as a matter of law to exhibit a cause of action against the resident defendant, his presence may be disregarded, and the controversy considered as one wholly between the plaintiff and the nonresident defendant. Nelson v. Hennessey (C.C.) 33 F. 113; Bryce v Southern Ry. Co. (C.C.) 122 F. 709; Floyt v. Shenango Furnace Co. (C.C.) 186 F. 539; McAllister v. Chesapeake & O. Ry. Co. (D.C.) 198 F. 660. I cannot go so far, however, as to accept this as a rule of universal application. It is well settled that for the purposes of removal the nature of the cause of action...

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