bound herein as a party with the fraudulent intent and for no other purpose, and without reasonable grounds for plaintiff and his attorney to believe that the said Mike Donahue is liable to plaintiff for the death of the decedent or that he was at all negligent in any way resulting in said death, and all of which is wrongful, unlawful, and fraudulent. The said action and controversy is wholly and entirely between plaintiff and your petitioner, and your petitioner's rights and the rights of the plaintiff herein can be determined wholly and entirely separate and independent of any cause of action, if any there be, against the defendant Mike Donahue." Afterwards the motion to remove was over. ruled, 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, Adm'r, 232 U. S. 146, 34 Sup. Ct. 278, 58 L. Ed. 544, the Supreme Court of the United States said, in considering the sufficiency of a petition for removal: the case be shown to be within one of those 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 averments to be true, stated a good joint cause of action against the defendants, the right of removal on the ground of diverse citizenship did not exist, in the absence of grounds showing a fraudulent joinder. But in this case a fraudulent joinder could not be shown because the plaintiff had the right, as we will presently point out, to join Donahue, a resident of this state, as a defendant in this action, and, if the allegations of the petition were supported by evidence, to prosecute the action against him to a final judgment. The petition averred, and the evidence introduced on the trial showed, that Donahue was, as the representative of the coal com 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. "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 certain enumerated classes of cases. To the exercise of the right, therefore, it is essential that classes, and this must be done by a verified petition setting forth, agreeably to the ordinary rules of pleading, the particular facts, not already appearing, out of which the right arises. It is not enough to allege in terms that the case is removable or belongs to one of the enumerated classes, or otherwise to rest the right upon mere legal conclusions. As in other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts, and that, in the event of a removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition. So, when in such a case a resident defendant is joined with the nonresident, 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." * * In Haynes' Adm'rs v. C., N. O. & T. P. Ry. Co., 145 Ky. 209, 140 S. W. 176, Ann. Cas. 1913B, 719, this court said, in speaking of the joint liability of the employer and its superior servant to an employé 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: [1-3] As the removal petition was merely a traverse of the plaintiff's petition coupled 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 one that is in accord with the weight of modern sufficient when the motion was first made at authority, prevails in this state. We do not reca time when Donahue was a party defendant.ognize any distinction, so far as the accountabil ity of the servant is concerned, between acts of misfeasance and nonfeasance. 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 damages. There is no reason for making a distinction between acts of commission and omission when each involves a breach of duty. The servant is not personally liable in either case because the breach of duty was committed by him while acting in the capacity of servant, but responsibility attaches to him as an individual wrongdoer without respect to the position in which he acts or the relation he bears to some other person. It is the fact that the servant is guilty of a wrongful or negligent act amounting to a breach of duty that he owes to the injured person that makes him liable. It is not at all material whether his wrongful or negligent act is committed in an affirmative or willful manner, or results from mere nonattention to a duty that he owes to third persons, and that it is entirely within his power to perform or omit to perform. There are innumerable situations and conditions presented in the everyday affairs of life that make it the duty of persons to so act as not to harm others, and when any person, whatever his position or relation in life may be, fails, from negligence, inattention, or willfulness, to perform the duty imposed, he will be liable." Evans Chemical Works v. Ball, 159 Ky. 399, 167 S. W. 390, and Murray v. Cowherd, 148 Ky. 591, 147 S. W. 6, 40 L. R. A. (N. S.) 617, are to the same effect. [4] 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.' 99 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 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; C., N. O. & T. P. Ry. Co. v. Bohon, 200 U. 221, 26 Sup. Ct. 166, 50 L. Ed. 448, 4 Ann. Cas. 1152; C. & O. Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121; Southern Ry. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, 54 L. Ed. 732; C., B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521. [5] So that, under the pleading and evidence, the trial court committed error in directing a verdict as to Donahue. 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. [6] 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. Kettelhake, decided in January, 1915, and reported in 236 U. S. 311, 35 Sup. Ct. 355, 59 L. Ed. 594. The opinion in that case shows that a suit was brought in a Missouri court by Kettelhake'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 employés of the car company, superior in authority 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. & O. 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 same." this appeal was pending undisposed of in that court when this case was decided in the Supreme Court of the United States. 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 nonresident defendant, it must appear to make the case a removable one as to a nonresident defendant because of dismissal as to resident de fendants, 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 nonresident 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 an in voluntary nonsuit with leave to move to set it aside, and when that motion was overruled there was a remedy by 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. We cannot agree to the contention that upon this record, when the court had sustained the demurrers to the evidence as to Martin and Eilers and plaintiff took the nonsuit, the case was so far terminated as between the plaintiff and the resident defendants as to leave a removable controversy wholly between the plaintiff and a nonresident corporation. 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 nonresident 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 nonresident 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 de 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 had gone against Donahue. If this directed verdict had been properly ordered by the trial court, Donahue, who was properly joined as a defendant, would continue to remain a defendant until this court, on appeal, had approved the ruling of the trial court in directing a verdict. [7] 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 timbermen, 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 the deceased was not at all so convincing as to justify the court, as a matter of law, to direct a verdict for the 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 dan that this condition had been brought to the attention of one of the men whose duty it was to inspect and protect the roof. There was also evidence tending to show that the roof at this place was not sufficiently protected by timber, and that Donahue, who was the chief inspector, had not examined the roof on the day the slate fell. [8] A further contention of the coal company is that if the duty of inspecting the roof of the mine 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. Resting on this evidence, the argument is made: First, that the coal company had fulfilled its 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 argument 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. are not necessary, that this will exonerate the mineowner, in the event an injury happens by the falling in of the roof. As was said in Williams Coal Co. v. Cooper, 138 Ky. 287, 127 S. W. 1000: "If in cases like this the master could be relieved of liability upon the statement of the person charged with the duty of inspection that in his judgment the place was safe, there would be but few cases in which an employé who relied upon the inspection, and was injured, could recover, as it is fair to assume that in every instance the person charged with the duty of inspection would say that he had performed it. But his statement is not conclusive. It was a question for the jury to say from the evidence whether or not the place was reasonably safe. And in considering this question they had the right to give such weight as they deemed proper to the statement of the inspector. They may or may not believe from it that the master discharged his duty in furnishing a reasonably safe place." The same principle was announced in Huddleston's Adm'r v. Straight Creek Coal & Coke Co., 138 Ky. 506, 128 S. W. 589, where it was said: "The jury have the right to hear and consider, not only the evidence from the mouths of witnesses as to what they did and what was done, but they have also the right to hear and consider other evidence from witnesses who are qualified to testify as to the physical condition of the place or appliance before, at the time, and immediately after the accident, and the jury may from the facts and circumstances thus proven be warranted in concluding that they are entitled to more weight than the personal evidence of the witnesses whose testimony was in contradiction of these facts and circumstances." The instructions are complained of, but we think they submitted to the jury all the substantial issues in the case. The judgment is affirmed. MOSES v. PROCTOR COAL CO. (Court of Appeals of Kentucky. Nov. 18, 1915.) 1. DAMAGES 32- PERSONAL INJURIES PLEADING AND PROOF-FUTURE SUFFERING. In an action for personal injuries, plaintiff is entitled to recover for suffering which he will continue to endure after the trial, regardless whether a permanent impairment of earning power is pleaded or proven. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 40, 41, 71; Dec. Dig. 32.] 2. MASTER AND SERVANT 89 EXISTENCE OF RELATION-WAITING TO WORK. Where plaintiff, a coal miner, reported for work in a mine at the proper place and time, as ordered by the mine foreman, and upon arrival found the room not yet ready, because another employé had not finished his task of track placing, and while waiting for and voluntarily assisting in the completion of the placing, plaintiff was injured by a blast from an adjoining room, which blew through the partition, he was entitled to recover, regardless of the fact that he was assisting at the track placing as a mere volunteer, since while waiting for the room to be prepared, plaintiff's employer owed him the duty of providing a safe place. [9] In cases like this, where the law imposes upon the mineowner 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 danger was so obvious as that a person of ordinary intelligence could, in the exercise of ordinary care, have discovered the peril. It may be that the roof was inspected, but this was not conclusive evidence of the exercise of the required degree of care on the part of 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. C that the roof is safe and therefore supports | 89.] 3. MASTER AND SERVANT 89-SAFE PLACE -TO AND FROM WORK. The duty of the employer to provide a safe place for employés to work includes such places as the servant properly passes in going to and from his actual working place. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. 89.] 4. TRIAL 112 LIMITATION. Where the trial of a personal injury case consumed a whole day, involving the examination of 16 witnesses, and the giving of 8 instructions, it was error to limit the argument of counsel to 20 minutes on each side. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 273, 274; Dec. Dig. 112.] Appeal from Circuit Court, Whitley County. Action by Mart Moses against the Proctor Coal Company. Judgment for plaintiff for an insufficient amount, and he appeals. Reversed. R. S. Rose and R. L. Pope, both of Williamsburg, for appellant. Tye, Siler & Gatliff, of Williamsburg, for appellee. HANNAH, J. Mart Moses sued the Proctor Coal Company in the Whitley circuit court to recover damages for injuries sustained by him while working in the defendant's coal mine at Red Ash on July 13, 1914. He obtained a verdict and judgment in the sum of $250; but, deeming the sum awarded insufficient to compensate him for his injuries, he appeals, insisting that the trial court erred in instructing the jury and in limiting the argument to 20 minutes on a side. The plaintiff and his brother were engaged in what is termed "robbing," that is, the extraction of pillars and stumps. On Thursday before the Monday on which plaintiff was injured, they had completed the work to which they had theretofore been assigned, and were informed that there would be no place available for them to work in until the following Monday, the mine foreman promising to have a certain room prepared in the interim so that they could go to work therein on that day. On Monday, the plaintiff and his brother went to the place or room in question, and upon their arrival there, they found that the room was not quite ready for them, in that the track was not in proper position. George Woods, another servant of the company, was engaged in preparing the room for their work. It was necessary to pull the track over next to the side of the room. Woods was unable to do this by himself, and he requested plaintiff and his brother to assist him, which they did. After the track was moved over, plaintiff was assisting Woods in setting some timbers, when a miner in an adjoining room exploded a charge of powder in shooting down coal, broke through the connecting wall between his room and that in which plaintiff was working, and injured him. [1] 1. The court gave the following instruction on the measure of damages: "If your verdict is for the plaintiff, Moses, you will find for him such a sum in damages as you may believe from the evidence will fairly and reasonably compensate the plaintiff, Moses, for the pain and suffering, if any he has suffered, and for the permanent destruction of his power to earn money, if any he has suffered, as the direct and proximate result of the carelessness or negligence of the defendant company as predicated in instruction No. 1 above, not to exceed, however, the sum of $30,000, the amount claimed in plaintiff's petition." The plaintiff asked an instruction, which, in addition to the elements of damages mentioned in the instruction given, also authorized the jury to find for such mental and physical pain as he had already suffered and such as it was reasonably certain he would endure in the future as the direct result of his injuries so sustained, and the court declined to give such an instruction. This was error, as there was some evidence tending to show that plaintiff's suffering from the injuries in question had not ceased at the time of the trial. See Hobson, Blain & Caldwell on Instructions, §§ 216, 217, and the authorities thereunder cited; C. & O. Ry. v. Johnson, 145 Ky. 481, 140 S. W. 687; Howard v. Henderson Traction Co., 121 S. W. 954; L. & N. v. Logsdon, 114 Ky. 746, 71 S. W. 905, 24 Ky. Law Rep. 1566; L. & N. v. Lynch, 137 Ky. 696, 126 S. W. 362. Where it appears from the evidence that the plaintiff will continue after the trial to endure suffering from his injuries, he may recover therefor, regardless of whether there is permanent impairment of earning power pleaded or proven. L. & N. v. Stewart, 163 Ky. 164, 173 S. W. 757; Main Jellico Mountain Coal Co. v. Young, 160 Ky. 397, 169 S. W. 841. [2] 2. The action was defended upon the theory that the plaintiff, at the time he was injured, was not in the course of his employment; that he was employed to extract coal; that the working place was not ready for him; and that he was a mere volunteer, or was assisting George Woods to discharge duties which Woods alone was under obligation to perform. And it is now contemplated by appellee that it was entitled to a directed verdict, hence there should be no reversal of the judgment, even if the trial court did err in the instructions given. We are not impressed with the contention that defendant owed to plaintiff no duty at the time he was injured. It may be conceded that he was not at that time engaged in the performance of any work for which he was employed, and that he was doing work for which the coal company was under no obligation to pay him. But he was at the place where he had been ordered to report for work; and whether he sat down to watch another servant make the place ready, or whether he voluntarily assisted that servant |