They argue that Truhitte's failure to discover, and remove from the stairway, the "foreign" object on which plaintiff testified she slipped, or to warn her of its presence there, were merely acts of nonfeasance or breaches of duty he may have owed his employer, the Penney Company, but that, in Oklahoma, such non-action on his part could not be the basis of any liability to a third person, like plaintiff. They cite the cases of Chicago, R.I. P. Ry. Co. v. Witt, 144 Okla. 246, 291 P. 59, Davis v. St. Louis, S.F. Ry. Co., D.C., 8 F. Supp. 519, Morefield v. Ozark Pipe Line Corp., 8 Cir., 27 F.2d 890, Hane v. Mid-Continent Pet. Corp., 10 Cir., 43 F.2d 406, and Scott v. Huffman, 10 Cir., 237 F.2d 396, in support of their position. All of these cases are distinguishable from the present one, where, on the basis of the evidence, Truhitte both undertook to discharge the duty his employer, Penney Company, owed its invitees, and was the custodian of the store's premises, or, in so far as such business invitees as plaintiff were concerned, was in charge of the store. We think that, on either of these bases, his liability to plaintiff, under the facts of this case, would be the same as, or equal to, that of his employer — the "possessor" of the premises.
If, however, the fact were otherwise, the order is wholly without power and altogether void. Howe Machine Co. v. Edwards, 15 Blatchf. 402; Sulzer v. Watson, 39 Fed.Rep. 414; Swift Co. v. Jones, 145 F. 489; Ex parte Fisk, 113 U.S. 713. The cases cited in support of the order by the court below are either distinguishable on their facts or in direct conflict with the Constitution and acts of Congress referred to. Distinguishing: Davis v. St. Louis S.F. Ry. Co., 25 Fed.Rep. 786; Fenno v. Primrose, 119 Fed.Rep. 801; Corporation of St. Anthony v. Houlihan, 184 F. 252; Craven v. Clark, 186 Fed.Rep. 959; Vermeule v. Reilly, 196 Fed.Rep. 226; United States v. Wells, 203 Fed.Rep. 146. A writ of mandamus or of prohibition is the proper remedy.
The rule in Oklahoma is that a servant occupying the relation which Huffman did to the Railway Company in the instant case is not liable to third persons on account of his nonperformance of a duty of his employment, but only for acts of positive wrong and negligence. Chicago, R.I. P. Ry. Co. v. Witt, 144 Okla. 246, 291 P. 59; Hane v. Mid-Continent Petroleum Corp., D.C.N.D.Okla., 43 F.2d 406, 407; Davis v. St. Louis S.F. Ry. Co., D.C.N.D.Okla., 8 F. Supp. 519, 520. Oklahoma Natural Gas Co. v. Courtney, 182 Okla. 582, 79 P.2d 235, relied on by counsel for Scott, is clearly distinguishable.
Is a joint liability arising out of the concurrent negligence of the nonresident and resident defendants alleged? If so, there being no claim of fraudulent joinder, the motion to remand should have been granted. On the other hand, if the nonresident defendants are charged with different and nonconcurrent negligence, a separable controversy is presented. Beal v. Chicago, B. Q.R. Co. (D.C.) 298 F. 180, 181; Jackson v. Chicago, R.I. P. Ry. Co. (C.C.A.8) 178 F. 432; Trivette v. Chesapeake O.R. Co. (C.C.A.6) 212 F. 641, 643; Epperson v. Midwest Refining Co. (C.C.A.8) 22 F.2d 622; Des Moines Elevator Grain Co. v. Underwriters Grain, Assn. (C.C.A.8) 63 F.2d 103, 106; Stewart v. Nebraska Tire Rubber Co. (C.C.A.8) 39 F.2d 309; Davis v. St. Louis S.F. Ry. Co. (D.C.) 8 F. Supp. 519, 521; Coker v. Monaghan Mills (C.C.) 110 F. 803; Simkins Fed. Practice, § 1170; 4 Hughes Fed. Practice, § 2376. The only allegation charging the defendant Missouri Pacific Railroad Company with negligence is as follows: "That the defendant Missouri Pacific Railroad Company had carelessly and negligently left one of its freight trains standing across the crossing for an unusual length of time and contrary to its custom.
But, the parties have stipulated that the Defendant Archer as train conductor had the duty and ability to signal the engineer to slow down the train if its speed exceeded proper limits. The removing Defendant supports its removal by the cases of Scott v. Huffman, 237 F.2d 396 (Tenth Cir. 1956) and Davis v. St. Louis S.F. Ry. Co., 8 F. Supp. 519 (N.D.Okla. 1934) which cases stand for the proposition that an employee is not liable to third parties for acts of non-feasance or for failure to perform a duty of his employment. But, in 1966 in the case of J.C. Penney Company v. Barrientez, 411 P.2d 841 the Oklahoma Supreme Court either changed its position as to the above proposition or clarified the same to provide that under Oklahoma law where a duty is placed on an employee by his employer his failure to exercise reasonable care with reference to that duty by non-feasance or non-performance will result in liability of such an employee to third parties who sustain damages, injuries or losses as a result of such non-feasance or non-performance.
Such condition has been termed misfeasance. See Morefield v. Ozark Pipe Line Corporation, D.C.Okla. 1928, 27 F.2d 890; Davis v. St. Louis S.F. Ry. Co., D.C.Okla. 1928, 8 F. Supp. 519; Hane v. Mid-Continent Petroleum Corporation, D.C.Okla. 1930, 43 F.2d 406; Oklahoma Natural Gas Co. v. Courtney, 1938, 182 Okla. 582, 583, 79 P.2d 235, 241. Cf. Chicago, R.I. P. Ry. Co. v. Witt, footnote 6, supra. See Hane v. Mid-Continent Petroleum Corporation, footnote 7, supra, 43 F.2d at page 407. Also, read Oklahoma Natural Gas Co. v. Courtney, footnote 7, supra.
" A very similar case is that of Davis v. St. Louis S.F. Ry. Co., D.C., 8 F. Supp. 519, where a case was removed from the state court on the ground of diversity of citizenship as to the corporate defendant. The court points out, at page 520 of 8 F. Supp., that the resident defendant was not charged with
As to the third question presented in the gas company's brief, that of separable controversy, it is the contention of the gas company that the charge of negligence with reference to failure to inspect constitutes a charge against the employer alone, for which the employee, Highfill, is not liable to the plaintiff, and that hence no joint cause of action against Highfill and the gas company is alleged. In this connection, the gas company contends that the complaint does not charge Highfill with having made a negligent inspection or an improper inspection, but that he failed altogether to make an inspection; that this amounted to a charge that he had breached an obligation that he owed to the company and not one to the plaintiff, and a charge of nonfeasance which would not render him liable to third persons; and it cites Davis v. St. Louis S.F.R. Co. et al., D.C.Okla., 8 F. Supp. 519; Knight v. Atlantic Coast Line R. Co. et al., 5 Cir., 73 F.2d 76, 99 A.L.R. 405; Kelly v. Chicago A.R. Co. et al., C.C.Mo., 122 F. 286; and Morefield v. Ozark Pipe Line Corporation et al., D.C. Okla., 27 F.2d 890, each of which cases involved a charge of nonfeasance against the agent who was joined as a resident defendant, and in each of which the court held that the agent was not liable for such nonfeasance, and that therefore a separable controversy existed. It will be noted that the charge of negligence with reference to failure to inspect is linked in with that of negligently leaving a sunken place in the pavement, and carelessly and negligently reconstructing the surface after making the connection, so that the surface of the street was uneven, and in carelessly and negligently leaving the surface at that point covered with lime and other slippery substances, which allegations precede the one with reference to inspection.
The weight of authority in the federal courts seems to be that the servant is not liable to third persons for nonfeasance or mere omissions in the employ of his master unless some duty on the part of the employee to the person injured is shown. Knight v. Atlantic Coast Line R. Co. et al. (C.C.A.) 73 F.2d 76, 99 A.L.R. 405; Morefield v. Ozark Pipe Line Corporation (D.C.) 27 F.2d 890; Davis v. St. Louis S.F.R. Co. (D.C.) 8 F. Supp. 519; Macutis v. Cudahy Co. (D.C.) 203 F. 291; Kelly v. Chicago A.R. Co. (C.C.) 122 F. 286. In all of the federal cases examined in which the court held that the employee was not liable for nonfeasance or omissions in his master's service to third persons injured thereby, no statutory duty on the part of the employee was involved.
296 F. 531. See, also, Davis v. St. Louis & S.F. Ry. Co. (D.C. Okl.) 8 F.Supp. 519. At page 520 the following appears: 'It is well established that the mere nonfeasance or omission of the resident superintendent or foreman to perform his duties to his master, of inspection and repair, does not render him liable to third persons for injuries occasioned because of such nonfeasance or omission, he having a duty to his employer rather than to the injured third person. * * * Since no cause of action is stated against the resident defendant Felip Portilloz, his joinder as a defendant does not prevent the removal of the case to the Federal Court.'