166 Ky. 776 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
This suit was brought by the administrator of James E. Prichard against the Carter Coal Company, a Delaware corporation, and Mike Donakne, its mine boss, who was a citizen of Kentucky, to recover damages for the death of J ames E. Prichard while in the employment of the company and working under the direction and control of the defendant Donahue.
At the time of his death Prichard was a track man, engaged, in placing a derailed car on the track, and while so engaged Prichard and two other men were killed by a large and heavy piece of slate that fell from the roof of the mine.
On the trial of the case,.there was a directed verdict as to Donahue and a judgment against the coal company.
On this appeal of the coal company one assignment of error relates to the refusal of the trial court to remove the action to the Federal court when the removal petition was first filed, and also upon a renewal of the motion, at the conclusion of the evidence, when the court determined that the plaintiff had failed to make out a case against Donahue and directed a verdict in his behalf.
The plaintiff’s petition charged that the Carter Coal Company was the owner and operator of the mine in which Prichard came to his death, and that the defendant Donahue “was a servant and employe of the defendant company, working for it in the operation of its mine, acting in the capacity of a foreman or boss, and directing other servants of said company, including the said James E. Prichard, in the'performance of their duties at work in said' mine while at work for said company.
In seasonable time after the defendants had been brought before the court by service of process, and before the Carter Coal Company had otherwise entered its appearance to the action, it moved the trial court to transfer the action to the Federal Court, upon the ground that it was a citizen of the State of Delaware and averred that “the plaintiff, C. P. Prichard, has made the defendant, Mike Donahue, a party defendant herein with this petitioner for the sole purpose of undertaking to
Afterwards the motion to remove was overruled, and thereupon the defendants filed a joint answer traversing all the averments of the petition and pleading that the decedent assumed the risk of the injuries that caused his death; that his death was the result, of an unavoidable accident, and that it was brought about by reason of his contributory negligence. The parties then went to trial, and when at the conclusion of the evidence for the plaintiff, the trial judge erroneously, as we think, ordered a directed verdict as to Donahue, the motion to remove the action was renewed on the petition filed at the beginning of the case. This motion was overruled, and we think the ruling of the court was correct in overruling the motion first made as well as the motion made at the conclusion of the plaintiff’s evidence.
In Chesapeake & Ohio Ry. Co. v. Cockrell, Admr., 232 U. S., 146, the Supreme Court of the United States said, in considering the sufficiency of a petition for removal: “The right of removal from a State to a Federal Court, as is well understood, exists only in certain enumerated classes of cases. To the exercise of the right, therefore, it is essential that the case be shown to be within
“So, when in such a case a resident defendant is joined with the non-resident, the joinder, even although fair upon its face, may be shown by a petition for removal to be only a fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly engendering that conclusion. Merely to traverse the allegations upon which the liability of the resident defendant is rested or to apply the epithet ‘fraudulent’ to the joinder will not suffice; the showing must be such as compels the conclusion that the joinder is without right and made in bad faith.”
As the removal petition was merely a traverse of the plaintiff’s petition, coupled with the charge that the joinder was fraudulent, we think that when tested by the rule of pleading laid down in this case it was not sufficient when the motion was first made at a time when Donahue was a party defendant. The substance of it was that Donahue was fraudulently joined as a party defendant for the sole purpose of depriving the petitioner of .the right of removal, although the plaintiff and his attorney knew that Donahue was not in any way liable to the plaintiff or guilty of any negligence contributing to the death of the deceased. As distinctly held in the Cockrell case, the facts relied on to show a fraudulent joinder must be set forth, and this the petition for removal did not do. It is true the petition avers that Donahue was not in any manner responsible for the accident or resulting injury, but this unfounded averment did not entitle the foreign corporation to a removal, because the petition, if its averments were true, stated a good joint cause of action against Donahue and the coal company. And as the petition, assuming its
The petition averred, and the evidence introduced on. the trial showed, that Donahue was, as the representative of the coal company, acting in the capacity of mine boss, superior in authority to the deceased, and directly charged with the duty of looking after the safety of the mine. It also charged, and the evidence also showed, that Donahue directed the deceased to do the work he was doing at the time he was killed. It was further charged, and there was evidence to support it, that the accident was caused by the unsafe and dangerous condition of the mine roof and that this condition was known to Donahue and the coal company, or could have been known to them by the exercise of ordinary care. So that measured by the averments of the plaintiff’s petition, which were supported by evidence, Donahue was jointly liable with the coal company, and the plaintiff had in good faith the legal right to join him as a defendant and prosecute the action against him to a judgment.
In Haynes’ Admrs. v. C., N. O. & T. P. Ry. Co., 145 Ky., 209, this court said, in speaking of the joint liability of the employer and its superior servant to an employe' who is injured or killed by the acts of omission or commission on the part of the superior servant involving a. breach of duty to the injured party:
“In some jurisdictions the servant is not held accountable to third persons for non-feasance, but is for misfeasance; but a contrary rule and one that is in accord with the weight of modern authority prevails in: this State. We do not recognize any distinction so far-as the accountability of the servant is concerned between* acts of misfeasance and non-feasance. If a servant performs in an unlawful manner an act that results in injury to a third person, or if a servant fails to observe a duty that he owes to third persons, and injury results; from his fault of commission or omission, he is liable in
The right to join the servant and the master in actions of tort is also distinctly authorized by section 241 of the Constitution, providing, in part, that “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same;” and by section 6 of the Kentucky Statutes, providing, in part, that “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such' death from the person'or persons, company or companies, corporation or corporations, their agents or servants, causing the same. ’ ’ And under authority of these constitutional and statutory provisions we have frequently announced the rule that an action to recover damages for wrongful death may be prosecuted jointly against the master and the servants guilty of the negligence complained of. C. & O. Ry. Co. v. Dixon, 104 Ky., 608; C., N. O. & T. P. Ry. Co. v. Finnell, 108 Ky., 135; Winston v. I. C. R. R. Co., 111 Ky., 954.
So that under the pleadings and evidence, the trial court committed error in directing a verdict as to Donahue. But as the ruling in ordering a directed.verdict as to Donahue was erroneous, the status of the coal company should be regarded the same as if the motion to direct a verdict in regard to Donahue- had been overruled. The coal company will not be allowed to avail itself of this ruling of the trial court to secure an advantage that it could not have obtained except for this erroneous ruling.
There is, too, another reason for sustaining the correctness of the trial court’s ruling in refusing to remove the case after the directed verdict had gone as to Donahue. The ground for this reason is the practice that appears to have been announced by the Supreme Court of the United States in American Car & Foundry Co. v. Kettlehake, decided in January, 1915, and reported in 236 U. S., 311, 58 Law Ed.,-. The opinion in that case shows that a suit was brought in a Missouri court by Kettlehake’s widow against the car company, a New Jersey corporation, and Eilers and Martin, citizens of Missouri, to recover damages for the negligent killing of her husband by the movement of a train of cars operated by the car company. It was conceded that the action was properly brought jointly against the car company and Eilers and Martin, and we infer that Eilers and Martin were made parties defendant because they failed as employes of the car company, superior in authority to Kettlehake, to perform some duty they owed him.
In holding that the trial court correctly ruled in refusing to remove the case after the peremptory instruction had been sustained as to Eilers and Martin, the court, after commenting on other cases, said this :
“Taking these cases together, we think it fairly appears from them that where there is a joint cause of action against defendants resident' of the same State with the plaintiff and a non-resident defendant, it must appear to make the case a removable .one as to a nonresident defendant because of dismissal as to resident defendants that the discontinuance as to such defendants was voluntary on the part of the plaintiff, and that such action has taken the resident defendants out of the case, so as to leave a controversy wholly between the plaintiff and the non-resident defendant. * * * The ruling of-the court sustaining the demurrer to the evidence interposed by the resident defendants, practically determined the question of their liability, and, under the Missouri, practice, as we understand it, there was a right to take ran involuntary non-suit with leave to move to set it aside, :.and when that motion was overruled there was a remedy iby appeal to the Supreme Court of Missouri, as was done in the present case, and the order is not final until the appellate court passes upon it.
“The element upon which the decision in the Powers case, supra, depended — the voluntary dismissal and consequent conclusion of the suit in the State court as to the resident defendants — is not present in this case. ’ ’
It also appears from the opinion that the Missouri practice when a peremptory instruction is given by the trial court is not materially different from ours. Under our practice an appeal lies from the ruling of the trial court in directing a verdict as to one or more of the defendants when there is an exception taken to this ruling, as there was in this case, and on this appeal the correctness of the ruling of the trial court is drawn in .question by counsel for the plaintiff below as under our practice he has the right to do.
Adopting the view expressed by the Supreme Court in this case, we think that when the plaintiff properly states a joint cause of action against a non-resident and a resident defendant, the fact that the trial court gives a peremptory instruction as to the resident defendant, whether this ruling be erroneous or not, does not then entitle a non-resident defendant to removal of the action on the ground of diverse citizenship, if the plaintiff excepts, as he may do, to the ruling of the court releasing the resident defendant and prosecutes, as he may do, from such ruling an- original appeal to this court or a cross-appeal on the appeal of the defendant.
At any rate, if the plaintiff excepts to the ruling releasing the resident defendant, and the correctness of this ruling is brought to the attention of this court either on the appeal of the plaintiff or on the appeal of the nonresident' defendant from a judgment against it, it •could not be said that the resident defendant, who was properly joined in the first instance, did not remain a party defendant until this court had finally determined the correctness of the ruling of the trial court. So that in no state of case that we can think of is the coal company in a position to complain of the ruling of the trial •court in refusing to remove the action when the verdict
It is urged, however, that the trial court should have directed a verdict in favor of the coal company on the ground that the evidence showed it was the duty of the deceased to inspect the roof of the mine, and, therefore, if the roof was in an unsafe condition, his failure to observe it and save himself from danger was such contributory negligence as would defeat a recovery.
The evidence was somewhat conflicting as to the duty of inspection imposed upon the deceased, but the weight of it, we think, tends to show that it was not his duty to inspect the mine at the place where he was working. The coal company had inspectors, the chief of whom was Donahue, the mine boss. It also had timber men, and Prichard was not engaged in mining coal at the time of his death, but was engaged as a track man, and the custom as to the duty of the miners engaged in removing coal to inspect the roof did not extend to laborers such as Prichard, who were engaged in a distinct character of work from that of mining coal.
It is true it was the duty of the deceased to exercise ordinary care for his own safety, although not charged with the duty of inspection, and if the unsafe condition of the roof at the place where he was working was so obvious as that a person of ordinary intelligence, in the exercise of ordinary care for his own safety, could not have failed to discover it, this would have amounted to such contributory negligence as would have defeated a recovery. This, however, was a question of fact that should have been and was submitted to the jury. The evidence, that the duty of inspecting the roof of the mine at the place where he was working rested upon tbe deceased, was not at all so convincing as to justify the court, as a matter of law, to direct a verdict for tbe coal company. Nor was the evidence as to the dangerous and unsafe condition of the roof of the mine so conclusive as to justify the legal presumption that the deceased, in the exercise of ordinary care, should have discovered it. There was evidence of the dangerous condition of the roof and evidence that this condition had
A further contention of the coal company is that if the duty of inspecting the roof of the miné in a proper and sufficient manner, devolved upon it, having discharged its duty in this respect, it should not be held accountable for an accident that happened notwithstanding its careful inspection. In support of this view there was evidence tending to show that on the day preceding the accident the- roof at this place was inspected and found to be in a safe condition. There was further evidence tending to show that the piece of slate that .fell was so large and thick that the usual and customary inspection would not have disclosed its defective condition. Besting on this evidence, the argument is made, first, that the coal company had fulfilled |ts duty of inspection and exercised the required care in respect thereto; and, second, that when the most careful inspection would not have disclosed the defect in the roof, the injuries resulting from the fall of the slate must be attributable to accidental causes that no amount of care could have guarded against.
The answer to this arg-ument is that it was the duty of the coal company to exercise ordinary care to furnish to the deceased a reasonably safe place in which to work, and this duty carried with it the duty of inspection and the duty of supporting the roof with timbers in the event an inspection disclosed the necessity for timbering. And there was evidence conducing to show that the roof was unsafe and that this condition, by the exercise of ordinary care, could have been discovered in time to have protected the roof, if ordinary care had been exercised to adopt this method of safety after the attention of the coal company was called to the necessity for supporting the roof.'
In cases like this where the law imposes upon the mine owner the duty of inspection, and the further duty of supporting the roof by timber if inspection shows this to be necessary, it cannot escape liability for accident unless it appears that the duty of inspection was imposed upon the injured person, or it is shown that the
“If in cases like this the master could be relieved of liability upon tbe statement of tbe person charged with tbe duty of inspection that in bis judgment the place was safe, there would be but few cases in which an employe who relied upon tbe inspection, and was injured, could recover, as it is fair to assume that in every instance tbe person charged with tbe duty of inspection would say that be bad performed it. But bis statement is not conclusive. It was a question for tbe jury to say from tbe evidence whether or not tbe place was reasonably safe. And in considering this question they bad tbe right to give such weight as they deemed proper to tbe statement of tbe inspector. They may or may not believe from it that tbe master discharged bis duty in furnishing a reasonably safe place.”
Tbe same principle was announced in Huddleston’s Admr. v. Straight Creek Coal & Coke Co., 138 Ky., 506, where it was said: “Tbe jury bave tbe right to bear and consider, not only tbe evidence from tbe mouths of witnesses as to what they did and what was done, but they bave also tbe right to bear and consider other evidence from witnesses who are qualified to testify as to tbe physical condition of tbe place or appliance before, at the time, and immediately after tbe accident, and tbe jury may from tbe facts and circumstances thus proven be warranted in concluding that they are entitled to more weight than tbe personal evidence of tbe witnesses whose testimony was in contradiction of these facts and circumstances.”
Tbe instructions are complained of, but we think they submitted to tbe jury all the substantial issues in tbe case.
Tbe judgment is affirmed.