176 F. 1004 | U.S. Circuit Court for the District of Minnesota | 1910
Prior to the case of Alabama Great Southern Railway Company v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, or at least prior to the case of Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, the Circuit Courts, when considering motions to remand to the state courts, had been in the habit of deciding for themselves whether the negligent act of the servant in which the master personally took no part created a joint liability or a separate one. The decisions upon this point were not uniform. It was said in the Dixon Case that “the question was a somewhat nice one”; in the Thompson Case it was said that “there was much conflict in the authorities.” These cases, and particularly the Thompson Case, put an end to the practice above referred to, and decided that it was not for the Circuit Court, but for the plaintiff, to say whether the liability was a joint or a several one. If the plaintiff stated in his complaint that it was joint, the case could not be removed to the federal court, although he was wrong in his view of the law. The question whether he was right or wrong was one which he was entitled to have tried in the state court.
There was one condition, however, imposed upon him, and that was that he should act in good faith. It is probably true that in these cases the employés are always joined for the purpose of keeping the actions out of the federal courts. That, however, is not conclusive upon the question of good faith. Illinois Central Railroad Company v. Sheegog, 215 U. S. 308, 30 Sup. Ct. 101.
This is an action brought by the plaintiff to recover damages for personal injuries suffered by him while in the employ of the defendant railroad company as a coal shoveler at its station of Inver Grove, Minn. It appears from the evidence presented upon this motion that Inver Grove is a very small station on defendant’s line, that the defendant Hutton was the station agent and yardmaster at that place, and there is nothing to indicate that there was any other person in the employ of the defendant company' at that station who was superior to Hutton. He employed the plaintiff, directed him where to work, and delivered to him checks for his pay from month to month.
Hutton in his affidavit denied that the duty of making an inspection of this platform was imposed upon him. He admitted' that the plaintiff had at one time reported it as’being out of repair, and that he had given notice to the bridge-and engineer department, and that they had repaired it. He'said that it was his practice, when .he noticed anything out of repair in connection with the yard or the station, to report it to the proper officials, but that it was not his duty so to do.
The evidence upon this question as to whether it was or was hot the duty of Hutton to inspect this platform does not make so clear a case in favor of the- defendants as to indicate that the presentation by the plaintiff of a claim that it was his duty is so unfounded as to be proof of bad faith. It would in fact seem strange .if the chief employé in charge of the station was not affirmatively bound by his contract of employment to exercise a general supervisionmver the station grounds and the appliances used therein, and to report when they were out of repair. ' The evidence presented by the defendants to the effect that this coal dock and platform were under the charge of the bridge and engineer department and the fuel department is hot sufficient to show that the defendant Hutton had no duty in connection with their inspection! The most, that can be said in favor of the defendants is that upon the evidence presented it is doubtful whether by the terms of his employment he was or was not charged with the duty of inspecting the platform. That question the plaintiff has a right to have decided in the state court.
But it is said by the defendants that, even if the defendant Hutton was charged with the duty of inspecting this platform, the complainant states no cause of action against him, for it alleges only a duty im«posed upon him in favor of his employer, the railroad company, and for a breach of that duty by a failure to inspect no cause of action arises in favor of the plaintiff. In other words, for nonfeasance an action lies only in favor of the master, and not in favor of a third person; the theory being that an employé in such cases owes no duty to such third person. This contention presents a question of law, and it must be determined where that question should be decided. Which court has the right tp say whether the complaint states a <ause of. action or not?
A plaintiff, who claims that under such circumstances as appear in this case mere nonfeasance creates a liability in his favor, cannot be said to make such claim in had faith, even though the court should be of the opinion that the complaint would be held bad on a demurrer presented by the employe. In the Alabama Southern Railway Company Case the court said on page 215 of 200 U. S., on page 163 of 26 Sup. Ct. (50 L. Ed. 441):
"And while rhe Powers Case [169 U. S. 92, 18 Sup. Ct 264, 42 L. Ed. 673] was decided on the ground of the right to remove after the local defendants liad been dismissed from the action by the plaintiff, it is patent from the language fust (¡noted from the opinion that, conceding the misjoinder of causes of action appeared on the face of the petition, that fact was not decisive of the right of the nonresident defendant to remove the action to the federal court.”
The motion to remand is granted.
54 L. Ed. —.