127 Ky. 221 | Ky. Ct. App. | 1906
Opinion op the Court by
Reversing.
The appellant, who was a brakeman on one of appellee’s freight trains, brought this- suit against the appellee company and Calvin Mitchell to recover damages resulting from injuries sustained by being-struck by a waterspout, attached to a tank operated by the defendant company near Cerulean Springs. The petition averred: “That-the defendant Calvin ' Mitchell was in the employ of the company, and was -acting as its .pumper or superintendent or supervisor ■or manager of pumps, tanks, and all the appliances and water tanks, along its road; that he had charge and management of the .pumps, tanks, cranes, chains,
The petition stated a good cause of action against both the defendants, and the court properly refused to transfer the action when the motion was first made. I. C. R. R. v. Coley, 121 Ky. 385, 89 S. W. 234, 28 Ky. Law Rep. 336, 1 L. R. A. (N. S.) 370; Pierce’s Adm’r v. I. C. R, R., 86 S. W. 703, 27 Ky. Law Rep. 801. Whether the transfer was proper, upon the conclusion of the evidence for appellant, depends upon the question whether or not Mitchell was joined as defendant in good faith. The mere fact that the trial judge sustained a peremptory instruction on behalf of Mitchell is entitled to some weight, but is not in itself conclusive evidence that Mitchell was .not joined in good faith, or' that appellant failed to make out a case against Mitchell. To determine therefore whether or not the action of the trial court was proper, we will examine the evidence introduced by appellant, and determine from it whether or not the averments of the petition stating a good cause of action against Mitchell were sustained. The substance of the allegations against Mitchell are that he was directly in charge and control of and actually managed and controlled the tank, crane, spout, pumping station,' and all appliances connected therewith, and that as agent and servant of the company he carelessly and negligently placed the pillars, support
Assuming that it was the duty of Mitchell to keep these tanks and appliances in repair, and that the water pipe that struck appellant was hanging too low down, Mitchell could not be held liable to appellant, unless a servant such as Mitchell was is liable for nonfeasance, or for his failure to affirmatively take some action to remedy defects or dangerous ap*pliances to which his attention may be directed. This precise question was before this court in Cincinnati, New Orleans & Texas Pacific R. Co. v. Robinson, 115 Ky. 858, 74 S. W. 1061, 25 Ky. Law Rep. 265, and it was there held that the petition having failed to show any cause of action against Robinson, the employe joined with the company, that it was proper to remove the case to the United States Circuit Court. In the case at bar, the evidence wholly fails to make out a case against Mitchell, and therefore the action of the trial judge in giving the peremptory instruction was proper. The petition for removal set out that Mitchell was joined as a defendant for the sole purpose, and with the fraudulent design, of preventing the transfer of the case to the United States Circuit Court, and that the allegations of the petition in respect to Mitchell were untrue, aud could not be sustained by evidence; and, when the evidence on behalf of appellant disclosed a total failure to show any liability on the part of Mitchell, the conclusion remained that the allegations of the petition for removal were true.
In Illinois Central R. Co. v. Coley, 121 Ky. 385, 89
If the plaintiff can hy stating in his petition a good cause of action against a resident defendant, and thereby prevent the nonresident defendant from
The case of Whitcomb v. Smithson, 175 U. S. 635, 20 Sup. Ct. 248, 44 L. Ed. 303, is not in conflict with these views. It is true that in that case, at the close of the testimony for plaintiff, the trial court sustained a peremptory instruction offered by the resident defendant, and thereupon the nonresident defendant again moved to transfer the case, and this motion was overruled. In sustaining this ruling, the Supreme Court said: “This was a ruling on the merits, and not a ruling on the jurisdiction. It was adverse to the plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the cause then removable, and thereby enable the other defendants to prevent plaintiff from taking a verdict against them. As we have said, the contention of that railway company that it was fraudulently joined as a defendant had been disposed of by the United States Circuit Court. But, assuming without deciding that that contention could not have been properly renewed under the circumstances, it is sufficient to say that the record before us does not sustain it.” It will thus be seen that the decision of this question is rested upon the grounds: First, that it had been disposed of by the United States Circuit-Court; and, second, that the record did not show a fraudulent joinder.
The judgment of the lower court is affirmed.