Fogarty's Admr. v. Bates & Rogers Construction Co.

Opinion of the Court by William Rogers Clay, Commissioner Affirming. William Fogarty’s administrator brought this suit in the Mason circuit court against the Bates & Rogers Construction Company, an Illinois corporation, Robert Irvine and Richard Ellis, to recover damages in the sum of $50,000.00 for his death. The Bates & Rogers Construction Company filed a petition and bond for removal to the United States District Court for the Eastern District of Kentucky on the ground of separable controversy and fraudulent joinder. The order of transfer was made and plaintiff appeals. It appears that the bond was executed by the Bates ■& Rogers .Construction Company by S. F. Reed, attorney, and by S. F. Reed individually. It further appears that the petition for removal was verified as follows: “I, Stanley F. Reed, being duly sworn, do say that I am the attorney for the petitioner in the above entitled case; that I have read the foregoing petition and know the contents thereof; that the statements of the allegations therein contained are true as I firmly believe. ’ ’ The plaintiff filed the following demurrer to the petition for a removal: “The plaintiff, the Equitable Trust Co., of Dover, Ky., as administrator of William Fogarty, deceased, demurs to the petition for removal filed herein, because the same does not state facts sufficient to authorize this court to surrender jurisdiction or to enable the United States District' Court for the Eastern District of Kentucky to assume jurisdiction of this action and also for other reasons appearing on the face of the petition. ’ ’ The point is made that the bond was insufficient because the authority of Reed, who signed the bond on behalf of defendant, did not appear, and because the [850] statutes of Kentucky prohibit an attorney from becoming surety on such a bond. The point is also made that the-verification by Reed was insufficient because he did not show in his affidavit that-he was an officer or agent of the defendant or that the defendant had no officer or agent in the county in which the action was brought or was pending. Sub-section 2, section 117, Civil Code. In response to these contentions it is sufficient to say that in the case of Herron’s Admr. v. Bates & Rogers Construction Co., 180 Ky. 851, this day decided, we held that neither the insufficiency of the bond nor the insufficiency of the verification could be raised by a general demurrer such as was filed by plaintiff in this case, but only by specific objection pointing out wherein the bond and verification were defective, and that where such defects were not specifically pointed out in the circuit court, they will be deemed to have been waived, and will furnish no ground for a reversal of the order of removal It appears from the petition of the administrator that Fogarty, who was in the employ of the Bates & Rogers Construction Company and was engaged in carrying heavy timbers, became prostrated from the heat and died because he was not given proper hospital and medical treatment to which he was entitled under his contract of employment. It is charged in substance that Fogarty was inexperienced and the defendant failed to warn and instruct him of the danger. It is further alleged that he was engaged under the directions of the defendant, and especially under the directions of the defendants, Robert Irvine • and Richard Ellis, who were his bosses or superintendents, and that the defendant corporation and its co-defendants, Robert Irvine and Richard Ellis, carelessly and negligently failed to supply a sufficient number of men to do the work. It is also alleged that the place where he was required to work was dangerous and unsafe, and because of such labor he became prostrated from the heat and from dilation of the heart and that his condition was such as to require the immediate services of a physician as well as the comforts, conveniences and necessities of a hospital, and that the defendant, its agents and servants, failed to furnish him speedy, and adequate medical attention, and that if such at-' tention had been given him he would not have died. It will be observed that the several acts of negligence relied on are: (1) failure to warn, (2) failure to furnish851 sufficient number of men to do tbe work, (3) failure to furnish a safe place for work, (4) failure to furnish proper medical and hospital attention. The only negligence, however, charged against the local defendants is their failure to furnish a sufficient number of men to do the work. It is not charged that the local defendants had authority to employ other men, or that other men employed by the master were available for the service, and that the local defendants were charged with the duty of seeing that a sufficient number of men were engaged in the work. For aught that appears in the petition these duties may have devolved upon someone else. Therefore the mere' allegation that they negligently failed to furnish a sufficient number of men to do the work is not sufficient to state a cause of action against them. Since plaintiff is a resident of Kentucky and the removing defendant is a resident of Illinois, and no joint cause of action was stated against the removing defendant and the resident defendants it necessarily follows that the petition for removal was properly granted. C. N. O. & T. P. Ry. Co. v. Robertson, 115 Ky. 888, 74 S. W. 1061; Davis’ Admr. v. C. & O. Ry. Co., 116 Ky. 114, 75 S. W. 275. Judgment affirmed.