State Ex Rel. Hancock v. Falkenhainer

*655 GANTT, J. The record herein is in response to our writ of cerio-rari, issued on the 3rd day of March, 1925, to the respondents, Hon. Victor H. Falkenhainer and Hon. John W. Calhoun, as judges of the Circuit Court of the City of St. Louis. On the 19th of September, 1924, the relator filed in that court a suit against the Axelson Machine Company, a corporation, and Carl Arthur Carlson, for damages for personal injuries alleged to have been caused by the negligence of the defendants while he was in the employ of the defendant Axel-son Machine Company. Service was had on the 20th of September, 1924. In his petition in that ease the plaintiff states that the Axelson Machine Company was a corporation, and that the defendant Carl Arthur Carlson is and was at all times therein mentioned a resident of the city of St. Louis and State of Missouri; that on or about the 21st day of February, 1924, he was in the employ of defendant Axelson Machine Company and under the control of defendant Carlson, who was the foreman of the defendant Axelson Machine Company that it was the plaintiff’s duty to operate a machine known as a forging machine, and on said day he was directed by defendants, through defendant Carlson, to make adjustments upon the machine, and while so engaged it was necessary for him to stand in such a position with reference to the machine that it was dangerous to him if the machine was started in motion; that the machine was operated by electrical power and started by the movement of a treadle; that while he was so engaged the defendants, acting through Carlson, suddenly and without warning caused the machine to start in motion, and thereby he was caught in the machine and greatly injured to his damage in the sum of $30,000. The defendant corporation on the 6th of October, 1924, and at the October term, filed a petition to remove the cause to the Federal court, stating that it is-a citizen of California, and that the plaintiff and defendant Carlson are citizens of Missouri; that a separate and severable controversy and cause of action exists in this case as .between the plaintiff and your petitioner; and that there is, therefore, a separate controversy within the meaning of the statutes of the United States. Respondents filed their return in this court on the 11th of April, 1925, and on the 15th of April, 1925, filed their motion in this court to quash the writ. Respondent Hon. John W. Calhoun had no part in any of the proceedings involved in said cause, but succeeded Hon. Victor H. Falkenhainer as judge of said court, and was for that reason joined as respondent. I. Respondents contend relator was guilty of laches and unreasonable delay in applying for our writ. Relator did not petition for the- writ until about four months after the order of removal to the Federal court was . made by the State court. For this delay relator *656 is charged with laches, and respondents insist for that reason we g^onM quash the writ. By the general rule the mere lapse of time will not preclude the granting of the writ. It is only where injustice will result that it will ordinarily be refused after the delay. [2 C. J. 147, sec. 133.] While the petition for removal was filed on the 6th of October, 1924, the order of record approving the bond, granting the petition, and staying the proceedings in the State court was not made until the 31st of October, 1924. The transcript of this record was filed in the Federal court on the 4th of November, 1924, and the defendant Axelson Machine Company filed its answer to the merits in said court on the 6th of January, 1925. By the record in this court, the above statement covers all that has been done by the defendant Axelson Machine Company in its efforts to remove this cause to the Federal court. It made these movements at the time because it was eompélled to do so by the Federal statute, and the movements were made before the relator petitioned to this court for our writ. The delay has in no way prejudiced the rights of the defendant Axelson Machine Company or the respondents, and their position in the Federal court has in no way been disturbed. On the 21st of November, 1924, relator filed in the State court a motion to set aside the order granting the removal, and on said day the motion was overruled. .Term bill of exceptions was allowed and filed on the 29th of November, 1924 (it being the last day of the October term of the State court). These movements of the relator in the State court establishes the fact that he resisted the removal of this cause to the Federal court from the beginning. This is not a case where the parties consented to a removal. Respondents direct our attention to the case of State ex rel. Berkshire v. Ellison, 287 Mo. 654. In that case we held that in these certiorari cases (referring to writs to the courts of appeals) a period of thirty days was ordinarily a reasonable time within which to petition for the writ. This ruling in some measure rests on the fact that the Court of Appeals' is required by law to send down its mandate within thirty days after its final judgment. The statement of the reason for the rule shows it has no application to the case at bar. In so ruling we did not limit our general discretion in issuing writs of certiorari. No time is fixed by statute within which the petition for our Avrit must be filed; and in some jurisdictions the writ is held to be analogous to and in lieu of a writ of error, for which one year is alloAved. [Union Drainage Dist. Commrs. v. Volke, 163 Ill. 243, 45 N. E. 415; 4 Cyc. of Prac. & Plead, p. 132.] This contention is overruled. II. "It is contended the defendant Carlson was only guilty of non-feasance, and, therefore, the cause is removable. Respondents concede that the removal petition did not tender an issue 0f fact and that was the duty o£ respondents, in the first instance, to decide whether or not upon the record the *657 cause was removable. The charges' of negligence in the petition are as follows: - , “That the defendants negligently and carelessly failed to warn the plaintiff of the intention of the defendants to start said machine in motion when they knew, or by the exercise of ordinary care should have known, that plaintiff was standing at such machine in a position that if said machine were started in motion that plaintiff would be or was likely to be injured thereby, and that by the presence of defendant Carl Arthur Carlson, defendants negligently and carelessly assured the plaintiff that plaintiff could do said work upon said machine with reasonable safety to himself, when the defendants knew, or by the exercise of ordinary care could have known, that in starting said machine in motion at said time that it was likely to cause injury to plaintiff. “Plaintiff further states that the negligence of defendants concurred and co-operated jointly to directly and proximately cause said injuries, and that as a direct result of the injuries thus sustained by him he has suffered. . . . ’ ’ It will be noted that the plaintiff did not charge negligence in the starting of the machine, but charged, first, negligence in the failure of the defendants to warn plaintiff of their intention to start the machine in motion; and, second, that by the presence of Carlson defendants negligently assured plaintiff he could work in safety. This question is to be determined by the State law. If the petition shows the defendants are jointly-liable (i. e. subject to joint suit and judgment), then there is not a separable controversy. [C. B. & Q. Ry. v. Willard, 220 U. S. 413; C. R. I. & P. Ry. v. Dowell, 229 U. S. 102; Ches. & O. Ry. v. Dixon, 179 U. S. 131; Alabama Ry. Co. v. Thompson, 200 U. S. 206; C. R. I. & P. Ry. v. Schwyhart, 227 U. S. 184; Brunski v. Ford Motor Co., 299 Fed. 807.] Respondents insist that the failure of defendant Carlson to warn plaintiff before starting the machine in motion was an act of omission and necessarily an act of nonfeasance. We have ruled differently. In the case of Orcutt v. Century Building Company, 201 Mo. l. c. 446, we held, in an opinion by Gísaves, J.,-that when an agent entered upon the performance of the work any act which he did, whether by omission or commission, was misfeasance, and he was jointly liable. The courts of appeals are following this case as our last word on the subject. [McCarver v. Lead Co. and, Foster, 216 Mo. App. l. c. 384; Vaughn v. Creamery Co., 275 S. W. l. c. 595.] A lengthy discussion of the question and a review of the authorities will be found in 20 A. L. R. 97, 137, l. c. 99 et seq., 139, 155, 165. The Oreutt ease in effect overrules on this question the cases of Steinhauser v. Spraul, 127 Mo. l. c. 552, 562; Bissell v. Roden, 34 *658 Mo. 63, and Harriman v. Stowe, 57 Mo. 93, cited by respondents.' In view of our ruling on this question, we hold defendant Carlson to be jointly liable with defendant Axelson Machine Company. III. Defendant Axelson Machine Company having filed in the Federal court a transcript of the record of this cause in the State court, it is suggested by respondents that we should as a matter 0£ comi£y quash the writ. We find no place in this proceeding for an application of the rule of comity. We have held the State court has jurisdiction of the cause, and, therefore, there is no conflict of jurisdiction. The plaintiff has the right to have his case tried in the State court. [State ex rel. Iba v. Mosman, 231 Mo. 474.] It follows that the motion to quash the writ is overruled, and the order of the circuit court of date of the 31st of October, 1924, sustaining the petition for removal and transferring the cause is quashed. All concur, except Graves, J., absent.