BURCH V. CADEN STONE CO.

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BURCH v. (Circuit Court, D. Kentucky.

CO. et aI. March 28, 1899.)

INJURY OF SERVANT-JOINT LIABILITY OF B'ELLOW SERVANT AND MASTER.

An p.mploye of a corporation cannot be held jointly liable with the corporation for an injury to another employe alleged to have resulted from negligence, both on his part and on the part of the corporation, where it is not alleged that he was guilty of willful wrongdoing, or that he acted outof his instructions or the scope of his employment.

On Demurrer to Petition. Pryor, O'Neal & Pryor, for plaintiff. Fairleigh, Straus & Eagles, for defendants. EVANS, District Judge. This action was begun in the state court, and was afterwards removed here by the defendants. The petition is in three paragraphs, though in the decision of the court upon the pending question the third paragraph need not be considered. The plaintiff, in substance, avers, in paragraph 1 of the petition, that he was, on the 22d of October, 1896, in the employment of the Caden Stone Company, and was engaged in laboring for it; that while acting in the line of his duty as a servant of said company, and while acting under the orders of its agent and servant, Albert Caden, a derrick fell upon the plaintiff, and wounded and injured and caused him to suffer greatly, both mentally and physically, and impaired his ability to earn money,-all to his damage in the sum of $10,000. Further, that said derrick fell and injured him,as a direct and natural result of the gross negligence of the servants of said company, who were. running and operating its quarry, and who, with such gross negligence, had erected said derrick in such an unskillful and unworkmanlike manner as to greatly endanger the lives of all defendants' employes near the same, and that, well knowing its dangerous condition, said company did erect and knowingly maintain the same, whereby plaintiff was injured as aforesaid. The second paragraph is in the following language:
"Plaintiff says, further, that said derrick was erected and maintained as set forth in the first paragraph of his petition, and at the time of his injury aforesaid, and prior thereto, Albert Caden was the agent and servant of said Caden Stone Company, and that he, with other agents and servants of said company, did assist in the erection and maintenance of said derrick, as set forth in the first paragraph of his petition, and that by his gross negligence; joined and concurring with the gross negligence of said company, all his injuries aforesaid were received, as the direct and natural consequence of said gross negligence. He says, further, that said Albert Caden was, at the time of his said injury, a stockholder, agent, and partner in the said Caden Stone Company. He says, further, that said Albert Caden is jointly and severally responsible to him for all his injuries aforesaid, and that by his gross negligence aforesaid this plaintiff has been damaged in the sum of $lQ,OOO."

No suggestion has been made of a misjoinder, either of parties or of causes of action, but defendant Albert Caden has filed a general demurrer to the second paragraph of the petition, bringing up thereby the question of whether that paragraph states a cause of action again$t that defendant. Assuming its statements to be true (except that the word "partner" mUlilt be ignored), and giving to them

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their natural significance and, meaning, the paragraph, taken in connection with the first paragraph/charges' tnait the'Caden Stone Company, its agents and servants,including cAllbert Caden, erected the derriqk with such gross negligence, and iJ;l.. such l:J.punskillful:;:tnd unworkmanlike manner, as 'to greatly endanger the lives of the employes of the company, and that the company,' 'knowing the dangerous .l;onditionof the derrick,knowingly' it, whereby plaintiff was .injured. It is ,furtherri;!ore. averred that the defendant Albert Caden, as agent and servant of the company, assisted in the erection and maintenance of the derrick; as set forth in'the first paragraph, and that by his gross negligence, joined and concurring with the gross tJ.egligence of the company, tb.e plaintiff's injuries were received while acting under the orders of said defendant, as agl:!pt of the company. The pronouns are so mixed in paragraph 2 as to m.ake it somewhat difficult at times to gathertbe exiiet meanof the pleader, but it is apparent from the pl ading that the plairitift apd Albert Caden were both at the timeemployel;l of the Caden 'Stone Company, IJut whether AlbettCaden was 'at any time actingbej'Q;t'ld the orders of his !priD.cipal 'does not appear. It is not shown that'there was any autllority on the part of Albert Caden independently to control the mann.er in which the derrick was erected. It is, ,not shown that guilty ofahywiUful or in" wrongdoing respectiIig the 'derrick or tbeoperations of the the,plalntiffwas injlired. If. it appeared from that the injury to was tile result of a posiand willful wrollg, he might be jointly liable with his pr'ificipaI; but in the absence of any statement showing that there was wrongdoing,or any express that Albert Caden had any control superior to that of the t,>lldntiff over the operations of the derrick, and in the absence of anystat mentdirectly connecting Albert Caden with the of the derrick in any manner not directed by the principal, or not within the scope of his employment, the court has reached the conclusion that the second paragraph of the petition does not show a cause of action against the defendant AlbertCaden. It does not show a case where any one but the principal-':'in this case, 'ihecommon employer of both liable to the plaintiff. to be one where the should respond, and not the servant. It is a case of negligence only. Mere ne$:ligejlce,however gross, would not change the rule, unless it were wIllful or malicious. The demurrer, therefore,is sustained, with, leave to the ,plaintiff to amend within two weeks.
GOLDMAN et al. v. SMITH (FRANKS, Intervener). '(DIstrict
1.

D.Kentucky.' February" 9, '1899.)

BA.NKRUP'JX!Y4E'LEADINO-DEMURRER

'lio ANswEn. to a.petltion ,in fIlv,oluntary ,cannot be raised . Petitioning creditors, objecting 'to the answer on this ground,mustsl!t the case down for hearing on the petitlotJ. and answer,' accol'dlIig the rules o'f equity practice.
All., issue as to the sufficiency of an

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