Wright v. Phœnix Utility Co., 198 N.C. 204 (1930)

Jan. 22, 1930 · Supreme Court of North Carolina

198 N.C. 204

DAN WRIGHT v. PHŒNIX UTILITY COMPANY, CAROLINA POWER AND LIGHT COMPANY and JACK FERGUSON.

(Filed 22 January, 1930.)

1. Removal of Causes C b — Where one resident defendant is a fellow-servant and the other the letter of an independent contract removal upon petition of nonresident contractor is proper.

Where it appears in a petition for the removal of a cause from the State to the Federal Court that one of the resident defendants was a mere fellow-servant and that the nonresident defendant was an independent contractor doing work thereunder for the other resident defendant, and that the work under the contract was not inherently dangerous: Helé, where the amount involved was sufficient and the proper procedure followed the petition of the nonresident defendant for the removal of the cause from the State to the Federal Court for diversity of citizenship was properly allowed.

2. Master and Servant D a — In order to liability of letter of independent contract the work to be done mnst be inherently dangerous.

The delegation of a duty under contract must be inherently dangerous in order for the letter of the contract to be liable for an injury inflicted upon an employee of the independent contractor in the performance of the work thereunder, and an inherent danger is one that is inherent to the performance of the contract itself and not a danger that might result from carelessness in the performance.

Civil actioN, before Grady, J., at Special August Term, 1929, of Haywood.

Tbe plaintiff alleged that be was employed by the Phoenix Utility Company, a foreign corporation, and that said corporation had a contract with its codefendant, Carolina Power and Light Company, by the terms of which the said Phoenix Utility Company “was to construct certain tunnels under Cataloochee Mountain and other mountains in Haywood County.”

Plaintiff further alleged that he was required “to stand immediately over and adjacent to a silo, and there to cut cement sacks and to open the same, and to cause said cement to be poured into the mouth of the silo, and thereafter to be permitted to fall through said silo down to a floor below where the same was to be used in making concrete; and that in cutting the wires from said sacks, and in opening said sacks, and thereafter permitting the same to spill and fall through said silo, large quantities of cement and dust would fly through the air so thick that the plaintiff and other employees could not see any distance; and that the plaintiff was constantly required to breathe said cement and dust into his lungs, which caused plaintiff to be injured, damaged and ruined for life as hereinafter alleged.” That Jack Ferguson “was placed in charge of a dinkey engine and cars used by tbe defendants for conveying cement to the plant of the defendant companies near the mouth of one of the tunnels, . . . and it was the duty of said Jack Ferguson, foreman for the defendant companies, not to cause said dinkey engine and cars to be wrecked and the sacks of cement to be thrown on and around the plaintiff, and permitted to burst, so much so that the contents of said sacks spread over the plaintiff and caused him to inhale the same, and to be ^overcome as a result thereof.”

Plaintiff further alleged that he began work on 10 August, 1928, and continued until 23 December, 1928, when he discovered “that he was inhaling large quantities of dust and particles of cement, and that it was causing him to cough, and otherwise injuring his chest, throat, larynx, and other parts of his body.”

Plaintiff further alleged that he was furnished with a mask to prevent the inhalation of dust, and that after the masks were worn out the defendants failed to furnish other suitable masks.

The defendant, Phoenix Utility Company, in apt time, filed a petition for removal, alleging that the plaintiff was an employee of said corporation, and that the Carolina Power and Light Company had made a contract with the Phoenix Utility Company, whereby the Utility Company was to construct certain tunnels as an independent contractor.

The petitioner further alleged that Jack Ferguson was only a laborer and operator of a dinkey engine, and that said Ferguson was not a foreman, vice-principal, or agent in any respect whatsoever, “but was simply an employee engaged to perform certain services for the stipulated wages agreed upon; that the said Jack Ferguson had absolutely no authority over, or control, or direction of the plaintiff in this action, or any other employee upon said works, but was himself under the orders and directions of Harvey Allen, another employee of the petitioner, Phoenix Utility Company.

Both the Carolina Power and Light Company and Jack Ferguson are residents of North Carolina, and the petitioner alleged that the joinder of Jack Ferguson and the Carolina Power and Light Company, as defendants in this action was a fraudulent joinder as contemplated by law.

The motion for removal was granted by the clerk of the Superior Court of Haywood County, and the plaintiff appealed to the trial judge, who affirmed the judgment of the clerk and decreed that the cause should he removed to the Federal court, from which judgment the plaintiff appealed.

Morgan, Ward & Stamen/ for plaintiff.

Rollins & Smothers and Harlcins & Vcm Winlcle for defendant.

BbogdeN, J.

It is to be observed that tbe plaintiff was not engaged in constructing tunnels, but that bis sole duty was to open sacks of cement. Necessarily cement dust would arise from sucb an operation.

Practically every phase of tbe law of removal bas been discussed by tbis Court in a long line of opinions;, and it is, therefore, unnecessary to “thresh over old straw.”

Tbe simple question is whether tbe record, in tbe case at bar, falls within tbe principles of law announced in Crisp v. Fibre Co., 193 N. C., 77, 136 S. E., 238, and Givens v. Mfg. Co., 196 N. C., 377, 145 S. E., 681, or within tbe principles announced in Rea v. Mirror Co., 158 N. C., 24, 73 S. E., 116; Johnson v. Lumber Co., 189 N. C., 81, 126 S. E., 165, and Cox v. Lumber Co., 193 N. C., 28, 136 S. E., 254.

We are of tbe opinion that tbe case falls within the line represented by tbe Rea, Johnson and Cox cases, supra. Tbe petition for removal clearly discloses and engenders tbe conclusion, by ample statement of fact, that tbe resident defendant, Jack Ferguson, was not a foreman, alter ego, or vice-principal. However, tbe Carolina Power and Light Company, a resident of North Carolina, was also joined, but it is clear that tbe real defendant, Phoenix Utility Company, was an independent contractor. Tbe Carolina Power and Light Company would not be liable, therefore, unless tbe work was inherently or intrinsically dangerous. Tbe term “intrinsically dangerous” bas been defined by tbis Court in several decisions, notably Scales v. Lewellyn, 172 N. C., 494, 90 S. E., 521. “We have recently said that “Tbe rule in regard to 'intrinsically dangerous' work is based upon tbe unusual danger which inheres in tbe performance of tbe contract, and not from tbe collateral negligence of tbe contractor. Mere liability to injury is not tbe test, as injuries may result in any kind of work where it is carelessly done, although with proper care it is not specially hazardous.” Vogh v. Geer, 171 N. C., 672, 23 A. L. R., 1016.

Applying tbe principles of law to tbe particular facts in tbe case at bar, we are of opinion that tbe work required of plaintiff does not fall within tbe legal classification of “inherently dangerous.” Hence it necessarily follows that tbe real defendant is tbe Phcenix Utility Company, a nonresident corporation, and tbe order of removal was properly made.

Affirmed.