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bound herein as a party with the fraudulent in- The substance of it was that Donahue was tent and for no other purpose, and without rea- fraudulently joined as a party defendant for sonable grounds for plaintiff and his attorney to the sole purpose of depriving the petitioner believe that the said Mike Donahue is liable to plaintiff for the death of the decedent or that of the right of removal, although the plainhe was at all negligent in any way resulting in tiff and his attorney knew that Donahue was said death, and all of which is wrongful, unlaw- not in any way liable to the plaintiff or ful, and fraudulent. The said action and controversy is wholly and entirely between plaintiff guilty of any negligence contributing to the and your petitioner, and your petitioner's rights death of the deceased. As distinctly held and the rights of the plaintiff herein can be de- in the Cockrell Case, the facts relied on to termined wholly and entirely separate and inde- show a fraudulent joinder must be set forth, pendent of any cause of action, if any there be, and this the petition for removal did not do. against the defendant Mike Donahue."
Afterwards the motion to remove was over. It is true the petition avers that Donahue ruled, and thereupon the defendants filed a was not in any manner responsible for the joint answer traversing all the averments of accident or resulting injury; but this unthe petition and pleading that the decedent founded averment did not entitle the foreign assumed the risk of the injuries that caused corporation to a removal, because the petihis death; that his death was the result of tion, if its averments were true, stated a an unavoidable accident; and that it was good joint cause of action against Donahue brought about by reason of his contributory and the coal company. And as the petition, negligence. The parties then went to trial, assuming its averments to be true, stated a and when at the conclusion of the evidence good joint cause of action against the defor the plaintiff the trial judge erroneously, fendants, the right of removal on the ground as we think, ordered a directed verdict as to of diverse citizenship did not exist, in the abDonahue, the motion to remove the action sence of grounds showing a fraudulent joinwas renewed on the petition filed at the be- der. But in this case a fraudulent joinder ginning of the case. This motion was over could not be shown because the plaintiff had ruled, and we think the ruling of the court the right, as we will presently point out, to was correct in overruling the motion first join Donahue, a resident of this state, as a made as well as the motion made at the con- defendant in this action, and, if the allegaclusion of the plaintiff's evidence.
tions of the petition were supported by eviIn Chesapeake & Ohio Ry. Co. v. Cockrell, dence, to prosecute the action against him to Adm'r, 232 U. S. 146, 34 Sup. Ct. 278, 58 L. a final judgment. Ed. 544, the Supreme Court of the United
The petition averred, and the evidence inStates said, in considering the sufficiency of troduced on the trial showed, that Donahue a petition for removal:
was, as the representative of the coal com“The right of removal from a state to a fed- pany, acting in the capacity of mine boss, eral court, as is well understood, exists only in superior in authority to the deceased and certain enumerated classes of cases. To the ex- directly charged with the duty of looking ercise of the right, therefore, it is essential that after the safety of the mine. It also chargthe case be shown to be within one of those classes, and this must be done by a verified peti- ed, and the evidence also showed, that Donation setting forth, agreeably to the ordinary rules hue directed the deceased to do the work he of pleading, the particular facts, not already ap- was doing at the time he was killed. It was pearing, out of which the right arises. It is not further charged, and there was evidence to enough to allege in terms that the case is removable or belongs to one of the enumerated classes, support it, that the accident was caused by or otherwise to rest the right upon mere legal the unsafe and dangerous condition of the conclusions. As in other pleadings, there must mine roof, and that this condition was known be a statement of the facts relied upon, and not to Donahue and the coal company, or could otherwise appearing, in order that the court may draw the proper conclusion from all the facts, have been known to them by the exercise of and that, in the event of a removal, the opposing ordinary care. So that, measured by the party may take issue, by a motion to remand, averments of the plaintiff's petition, which with what is alleged in the petition. * * So, when in such a case a resident defendant is were supported by evidence, Donahue was joined with the nonresident, the joinder, even jointly liable with the coal company, and the although fair upon its face, may be shown by a plaintiff had in good faith the legal right to petition for removal to be only a fraudulent device to prevent a removal; but the showing must join him as a defendant and prosecute the consist of a statement of facts rightly engender- action against him to a judgment. ing that conclusion. Merely to traverse the al- In Haynes' Adm’rs v. C., N. 0. & T. P. Ry. legations upon which the liability of the resident Co., 145 Ky. 209, 140 S. W. 176, Ann. Cas. defendant is rested, or to apply the epithet 'fraudulent to the joinder, will not suffice: the 1913B, 719, this court said, in speaking of the showing must be such as compels the conclusion joint liability of the employer and its supethat the joinder is without right and made in rior servant to an employé who is injured or bad faith."
killed by the acts of omission or commission [1-3] As the removal petition was merely a on the part of the superior servant involving traverse of the plaintiff's petition coupled a breach of duty to the injured party: with the charge that the joinder was fraud- "In some jurisdictions the servant is not held ulent, we think that, when tested by the rule accountable to third persons for nonfeasance, of pleading laid down in this case, it was not but is for misfeasance; but a contrary rule, and sufficient when the motion was first made at authority, prevails in this state. We do not rec
one that is in accord with the weight of modern a time when Donahue was a party defendant. I ognize any distinction, so far as the accountability of the servant is concerned, between acts of 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, misfeasance and nonfeasance. If a servant per- 4 Ann. Cas. 1147; C., N. 0. & T. P. Ry. Co. forms in an unlawful manner an act that results in injury to a third person, or if a servant fails v. Bohon, 200 U. S 221, 26 Sup. Ct. 166, 50 to observe a duty that he owes to third persons, L. Ed. 448, 4 Ann. Cas. 1152; C. & 0. Ry. and injury results from his fault of commission Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, or omission, he is liable in damages. There is 45 L. Ed. 121 ; Southern Ry. v. Miller, 217 no reason for making a distinction between acts of commission and omission when each involves U. S. 209, 30 Sup. Ct. 450, 54 L. Ed. 732; C., a breach of duty. The servant is not personally B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 liable in either case because the breach of duty Sup. Ct. 460, 55 L. Ed. 521.
. , was committed by him while acting in the capacity of servant, but responsibility attaches to
 So that, under the pleading and evihim as an individual wrongdoer without respect dence, the trial court committed error in dito the position in which he acts or the relation recting a verdict as to Donahue. But as the he bears to some other person. It is the fact that ruling in ordering a directed verdict as to the servant is guilty of a wrongful or negligent act amounting to a breach of duty that he owes Donahue was erroneous, the status of the to the injured person that makes him liable. It coal company should be regarded the same as is not at all material whether his wrongful or if the motion to direct a verdict in regard to negligent act is committed in an affirmative or Donahue had been overruled. The coal comwillful manner, or results from mere nonattention to a duty that he owes to third persons, and pany will not be allowed to avail itself of that it is entirely within his power to perform or this ruling of the trial court to secure an adomit to perform. There are innumerable situa- vantage that it could not have obtained extions and conditions presented in the everyday affairs of life that make it the duty of persons to cept for this erroneous ruling. so act as not to harm others, and when any  There is, too, another reason for susperson, whatever his position or relation in life taining the correctness of the trial court's may be, fails, from negligence, inattention, or willfulness, to perform the duty' imposed, he'will ruling in refusing to remove the case after be liable.”
the directed verdict had gone as to Donahue. Evans Chemical Works v. Ball, 159 Ky. The ground for this reason is the practice 399, 167 S. W. 390, and Murray v. Cowherd, that appears to have been announced by the 148 Ky. 591, 147 S. W. 6, 40 L. R. A. (N. S.) Supreme Court of the United States in Amer617, are to the same effect.
ican Car & Foundry Co. v. Kettelhake, de The right to join the servant and the cided in January, 1915, and reported in 236 master in actions of tort is also distinctly U. S. 311, 35 Sup. Ct. 355, 59 L. Ed. 594. The authorized by section 241 of the Constitution opinion in that case shows that a suit was providing, in part, that:
brought in a Missouri court by Kettelhake's "Whenever the death of a person shall result widow against the car company, a New Jerfrom an injury inflicted by negligence or wrong- sey corporation, and Eilers and Martin, citiful act, then, in every such case, damages may zens of Missouri, to recover damages for the be recovered for such death, from the corpora- negligent killing of her husband by the movetions and persons so causing the same.
And by section 6 of the Kentucky Statutes, ment of a train of cars operated by the car providing, in part, that:
company. It was conceded that the action "Whenever the death of a person shall result was properly brought jointly against the from an injury inflicted by negligence or wrong-car company and Eilers and Martin, and we ful act, then in every such case, damages may be infer that Eilers and Martin were made parrecovered for such death from the person or per- ties defendant because they failed as emsons, company or companies, corporation or corporations, their agents or servants, causing the ployés of the car company, superior in ausame.”
thority to Kettelhake, to perform some duty And under authority of these constitution- they owed him. On the trial of the case, al and statutory provisions we have frequent at the conclusion of the evidence for the ly announced the rule that an action to re- plaintiff, the trial court peremptorily instructcover damages for wrongful death may be ed the jury to find for the defendants Eilers prosecuted jointly against the master and the and Martin, and thereupon the car company servants guilty of the negligence complained filed its petition for removal to the federal of.
C. & 0. Ry. Co. v. Dixon, 104 Ky. 608, 47 court, and moved the court to transfer the S. W. 615, 20 Ky. Law Rep. 792; C., N. o. case upon the ground that as the action then & T. P. Ry. Co. v. Finnell, 108 Ky. 135, 55 s stood it was simply a case between the plainW. 902, 22 Ky. Law Rep. 86, 57 L. R. A. 266; tiff a citizen of Missouri and the car comWinston v. I. C. R. R. Co., 111 Ky. 954, 65 s. pany a citizen of New Jersey. The trial W. 13, 23 Ky. Law Rep. 1283, 55 L. R. A. 603. court, however, declined to remove the action,
It may be further noticed that the Supreme and on the appeal of the car company from Court of the United States has in many cases the judgment against it this ruling was aprecognized the right of a plaintiff in an ac. proved by the St. Louis Court of Appeals. tion for tort in a state court to join as de- From the judgment of the St. Louis court fendants the master and servant whose negli- holding that the case was not removable, an gence caused the injuries of which he com- appeal was prosecuted to the Supreme Court plains, although the master may be a non- of the United States. It also appears that resident of the state in which the action was from the ruling of the trial court directing brought and the servant a resident defendant. a peremptory instruction, the plaintiff apAlabama Great Southern R. Co. v. Thompson, pealed to the Supreme Court of Missouri, and this appeal was pending undisposed of in that is brought to the attention of this court eicourt when this case was decided in the Suther on the appeal of the plaintiff or on the preme Court of the United States. In hold-appeal of the nonresident defendant from ing that the trial court correctly ruled in re- a judgment against it, it could not be said fusing to remove the case after the perempto- that the resident defendant, who was properry instruction had been sustained as to ly joined in the first instance, did not remain Eilers and Martin, the court, after comment- a party defendant until this court had finaling on other cases, said this:
ly determined the correctness of the ruling "Taking these cases together, we think it fair of the trial court. So that in no state of ly appears from them that, where there is a case that we can think of is the coal comjoint cause of action against defendants resident pany in a position to complain of the ruling resident defendant, it must appear to make the of the trial court in refusing to remove the case a removable one as to a nonresident de-action' when the verdict had gone against fendant because of dismissal as to resident de- Donahue. If this directed verdict had been fendants, that the discontinuance as to such de- properly ordered by the trial court, Donahue, fendants was voluntary on the part of the plaintiff, and that such
action has taken the resident who was properly joined as a defendant, defendants out of the case, so as to leave a con- would continue to remain a defendant until troversy wholly between the plaintiff and the this court, on appeal, had approved the rulnonresident defendant.
The ruling of the court sustaining the demurrer to the sevi- ing of the trial court in directing a verdict. dence interposed by the resident defendants  It is urged, however, that the trial practically determined the question of their lia- court should have directed a verdict in fability, and under the Missouri practice, as we vor of the coal company on the ground that understand it, there was a right to take an involuntary nonsuit with leave to move to set it the evidence showed it was the duty of the aside, and when that motion was overruled there deceased to inspect the roof of the mine, was a remedy by appeal to the Supreme Court and therefore, if the roof was in an unsafe of Missouri, as was done in the present case, condition, his failure to observe it and save and the order is not final until the appellate court passes upon it. We cannot agree to the himself from danger was such contributory contention that upon this record, when the court negligence as would defeat a recovery. had sustained the demurrers to the evidence as to Martin and Eilers and plaintiff took the non- to the duty of inspection imposed upon the
The evidence was somewhat conflicting as the plaintiff and the resident defendants as to deceased; but the weight of it, we think, leave a removable controversy wholly between tends to show that it was not his duty to the plaintiff and a nonresident corporation. The inspect the mine at the place where he was Case, supra, depended--the voluntary dismissal working. The coal company had inspectors, and consequent conclusion of the suit in the the chief of whom was Donahue, the mine state court as to the resident defendants—is not boss. It also had timbermen, and Prichard present in this case.'
was not engaged in mining coal at the time It also appears from the opinion that the of his death, but was engaged as a track Missouri practice when a peremptory in- man, and the custom as to the duty of the struction is given by the trial court is not miners engaged in removing coal to inspect materially different from ours. Under our the roof did not extend to laborers such as practice an appeal lies from the ruling of Prichard who were engaged in a distinct the trial court in directing a verdict as to character of work from that of mining coal. one or more of the defendants when there is It is true it was the duty of the deceased an exception taken to this ruling as there to exercise ordinary care for his own safewas in this case, and on this appeal the ty, although not charged with the duty of correctness of the ruling of the trial court inspection, and if the unsafe condition of is drawn in question by counsel for the the roof at the place where he was workplaintiff below as under our practice he has ing was so obvious as that a person of ordithe right to do.
nary intelligence, in the exercise of ordinary Adopting the view expressed by the Su-care for his own safety, could not have failed preme Court in this case, we think that, to discover it, this would have amounted to when the plaintiff properly states a joint such contributory negligence as would have cause of action against a nonresident and a defeated a recovery. This, however, was a resident defendant, the fact that the trial question of fact that should have been and court gives a peremptory instruction as to was submitted to the jury. The evidence the resident defendant, whether this ruling that the duty of inspecting the roof of the be erroneous or not, does not then entitle mine at the place where he was working a nonresident defendant to removal of the rested upon the deceased was not at all so action on the ground of diverse citizenship, convincing as to justify the court, as a matif the plaintiff excepts, as he may do, to the ter of law, to direct a verdict for the coal ruling of the court releasing the resident company. Nor was the evidence as to the defendant and prosecutes, as he may do, dangerous and unsafe condition of the roof
, from such ruling an original appeal to this of the mine so conclusive as to justify the court or a cross-appeal on the appeal of the legal presumption that the deceased, in the defendant. At any rate, if the plaintiff ex- exercise of ordinary care, should have discepts to the ruling releasing the resident de covered it. There was evidence of the danthat this condition had been brought to the are not necessary, that this will exonerate attention of one of the men whose duty it the mineowner, in the event an injury hapwas to inspect and protect the roof. There pens by the falling in of the roof. As was was also evidence tending to show that the said in Williams Coal Co. v. Cooper, 138 Ky. roof at this place was not sufficiently pro- 287, 127 S. W. 1000: tected by timber, and that Donahue, who "If in cases like this the master could be rewas the chief inspector, had not examined lieved of liability upon the statement of the perthe roof on the day the slate fell.
son charged with the duty of inspection that in
his judgment the place was safe, there would be  A further contention of the coal com- but few cases in which an employé who relied pany is that if the duty of inspecting the upon the inspection, and was injured, could reroof of the mine in a proper and sufficient cover, as it is fair to assume that in every in
stance the person charged with the duty of inmanner devolved upon it, having discharged spection would say that he had performed it. its duty in this respect, it should not be held But his statement is not conclusive. It was a accountable for an accident that happened question for the jury to say from the evidence
whether or not the place was reasonably safe. notwithstanding its careful inspection. In And in considering this question they had the support of this view, there was evidence right to give such weight as they deemed proper tending to show that on the day preceding to the statement of the inspector. They may or the accident the roof at this place was in- may not believe from it that the master dis
charged his duty in furnishing a reasonably safe spected and found to be in a safe condition. place.” There was further evidence tending to show The same principle was announced in Hudthat the piece of slate that fell was so large dleston's Adm'r v. Straight Creek Coal & and thick that the usual and customary in- Coke Co., 138 Ky. 506, 128 S. W. 589, where spection would not have disclosed its defec- it was said: tive condition. Resting on this evidence, the
"The jury have the right to hear and consider, argument is made: First, that the coal com- not only the evidence from the mouths of witpany had fulfilled its duty of inspection and nesses as to what they did and what was done, exercised the required care in respect there other evidence from
witnesses who are qualified
but they have also the right to hear and consider to; and, second, that when the most careful to testify as to the physical condition of the inspection would not have disclosed the de- place or appliance before, at the time, and immefect in the roof, the injuries resulting from from the facts and circumstances thus proven be
diately after the accident, and the jury may the fall of the slate must be attributable warranted in concluding that they are entitled to accidental causes that no amount of care to more weight than the personal evidence of the could have guarded against.
witnesses whose testimony was in contradiction
of these facts and circumstances.” The answer to this argument is that it was
The instructions are complained of, but the duty of the coal company to exercise ordinary care to furnish to the deceased a
we think they submitted to the jury all the reasonably safe place in which to work, and substantial issues in the case. this duty carried with it the duty of inspec
The judgment is affirmed. tion 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
MOSES v. PROCTOR COAL CO. the roof was unsafe and that this condition, (Court of Appeals of Kentucky. Nov. 18, 1915.) by the exercise of ordinary care, could have 1. DAMAGES 32 – PERSONAL INJURIES – been discovered in time to have protected PLEADING AND PROOF-FUTURE SUFFERING. the roof, if ordinary care had been exercised In an action for personal injuries, plainto adopt this method of safety after the at- tiff is entitled to recover for suffering which he
will continue to endure after the trial, regardtention of the coal company was called to less whether a permanent impairment of earning the necessity for supporting the roof.
power is pleaded or proven.  In cases like this, where the law im- [Ed. Note.-For other cases, see Damages, poses upon the mineowner the duty of in-Cent. Dig. $8 40, 41, 71; Dec. Dig. Om 32.] spection, and the further duty of supporting 2. MASTER AND SERVANT Om 89 - EXISTENCE the roof by timber if inspection shows this
OF RELATION-WAITING TO WORK.
Where plaintiff, a coal miner, reported for to be necessary, it cannot escape liability work in a mine at the proper place and time, as for accident unless it appears that the duty ordered by the mine foreman, and upon arrival of inspection was imposed upon the injured found the room not yet ready, because another person, or it is shown that the danger was employé had not finished his task of track placso obvious as that a person of ordinary in- sisting in the completion of the placing, plaintelligence could, in the exercise of ordinary tiff was injured by a blast from an adjoining care, have discovered the peril. It may be room, which blew through the partition, he
was entitled to recover, regardless of the facť that the roof was inspected, but this was that he was assisting at the track placing as a not conclusive evidence of the exercise of mere volunteer, since while waiting for the room the required degree of care on the part of to be prepared, plaintiff's employer owed him
the duty of providing a safe place. the coal company. It does not follow, from
[Ed. Note. For other cases, see Master and the mere fact that the inspector decides servant, Cent. Dig. &153-156; Dec. Dig. Cm that the roof is safe and therefore supports | 89.]
3. MASTER AND SERVANT 89-SAFE PLACE  1. The court gave the following in-TO AND FROM WORK.
struction on the measure of damages: The duty of the employer to provide a safe place for employés to work includes such places "If your verdict is for the plaintiff, Moses, as the servant properly passes in going to and you will find for him such a sum in damages as from his actual working place.
you may believe from the evidence will fairly [Ed. Note.
For other cases, see Master and and reasonably compensate the plaintiff, Moses, Servant, Cent. Dig. 88 153–156; Dec. Dig. em for the pain and suffering, if any he has suf89.)
fered, and for the permanent destruction of his
power to earn money, if any he has suffered, as 4. TRIAL Omw 112 ARGUMENT OF COUNSEL the direct and proximate result of the carelessLIMITATION.
ness or negligence of the defendant company as Where the trial of a personal injury case predicated in instruction No. 1 above, not to consumed a whole day, involving the examina-exceed, however, the sum of $30,000, the amount tion of 16 witnesses, and the giving of 8 instruc- claimed in plaintiff's petition." tions, it was error to limit the argument of counsel to 20 minutes on each side.
The plaintiff asked an instruction, which, [Ed. Note. For other cases, see Trial, Cent. in addition to the elements of damages menDig. 88 273, 274; Dec. Dig. Om112.]
tioned in the instruction given, also authorAppeal from Circuit Court, Whitley County. ized the jury to find for such mental and Action by Mart Moses against the Proctor physical pain as he had already suffered and Coal Company. Judgment for plaintiff for such as it was reasonably certain he would an insufficient amount, and he appeals. Re- endure in the future as the direct result of versed.
his injuries so sustained, and the court deR. S. Rose and R. L. Pope, both of Wil-clined to give such an instruction. This was liamsburg, for appellant. Tye, Siler & Gat-error, as there was some evidence tending to liff, of Williamsburg, for appellee.
show that plaintiff's suffering from the in
juries in question had not ceased at the time HANNAH, J. Mart Moses sued the Proc. of the trial. See Hobson, Blain & Caldwell on tor Coal Company in the Whitley circuit Instructions, && 216, 217, and the authorities court to recover damages for injuries sus- thereunder cited; C. & 0. Ry. v. Johnson, tained by him while working in the defend-145 Ky. 481, 140 S. W. 687; Howard v. Henant's coal mine at Red Ash on July 13, 1914. derson Traction Co., 121 S. W. 954; L. & He obtained a verdict and judgment in the N. v. Logsdon, 114 Ky. 746, 71 S. W. 905, sum of $250; but, deeming the sum award-24 Ky. Law Rep. 1566; L. & N. v. Lynch, ed insufficient to compensate him for his in- 137 Ky. 696, 126 S. W. 362. juries, he appeals, insisting that the trial Where it appears from the evidence that court erred in instructing the jury and in the plaintiff will continue after the trial to limiting the argument to 20 minutes on a endure suffering from his injuries, he may side.
recover therefor, regardless of whether there The plaintiff and his brother were engaged is permanent impairment of earning power in what is termed “robbing," that is, the pleaded or proven. L. & N. v. Stewart, 163 extraction of pillars and stumps. On Thurs- Ky. 164, 173 S. W. 757; Main Jellico Mounday before the Monday on which plaintiff tain Coal Co. v. Young, 160 Ky. 397, 169 S. was injured, they had completed the work W. 841. to which they had theretofore been assigned,  2. The action was defended upon the and were informed that there would be no theory that the plaintiff, at the time he was place available for them to work in until injured, was not in the course of his employthe following Monday, the mine foreman ment; that he was employed to extract coal; promising to have a certain room prepared in that the working place was not ready for the interim so that they could go to work him; and that he was a mere volunteer, or therein on that day. On Monday, the plain-was assisting George Woods to discharge dutiff and his brother went to the place or room ties which Woods alone was under obligation in question, and upon their arrival there, to perform. And it is now contemplated by they found that the room was not quite ready appellee that it was entitled to a directed for them, in that the track was not in prop- verdict, hence there should be no reversal of er position. George Woods, another servant the judgment, even if the trial court did err of the company, was engaged in preparing in the instructions given. the room for their work. It was necessary We are not impressed with the contention to pull the track over next to the side of that defendant owed to plaintiff no duty at the room. Woods was unable to do this by the time he was injured. It may be concedhimself, and he requested plaintiff and hised that he was not at that time engaged in brother to assist him, which they did. After the performance of any work for which he the track was moved over, plaintiff was as-was employed, and that he was doing work sisting Woods in setting some timbers, when for which the coal company was under no a miner in an adjoining room exploded a obligation to pay him. But he was at the charge of powder in shooting down coal, place where he had been ordered to report broke through the connecting wall between for work; and whether he sat down to watch his room and that in which plaintiff was another servant make the place ready, or working, and injured him.
whether he voluntarily assisted that servant