Baltimore Co v. Burtch, 115

• Decision Date: 07 January 1924
• Docket Number: No. 115,115
• Citation: 263 U.S. 540,44 S.Ct. 165,68 L.Ed. 433
• Parties: BALTIMORE & O. S. W. R. CO. v. BURTCH
• Court: U.S. Supreme Court

263 U.S. 540

44 S.Ct. 165

68 L.Ed. 433

BALTIMORE & O. S. W. R. CO.

v BURTCH.

No. 115.

Argued Dec. 3, 4, 1923.

Decided Jan. 7, 1924.

William A. Eggers and Morison R. Waite, both of Cincinnati, Ohio, for petitioner.

Oscar H. Montgomery, of Seymour, Ind., and Merrill Moores, of Indianapolis, Ind., for respondent.

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is an action brought by Guerney O. Burtch against the Railroad Company to recover damages for a personal injury suffered, as a result of the company's negligence, while he was engaged in assisting to unload a heavy ensilage cutter from a freight train at Commisky, Ind. After the allowance of the writ of certiorari Burtch died and his administratrix was substituted as respondent.

The complaint is in two counts, the only one necessary to be considered being drawn upon the theory that at the time of the injury Burtch was an employee of the company and both were engaged in intrastate commerce. The answer denies the allegations of the complaint and alleges facts to establish that at the time of the injury they were engaged in interstate commerce. The contention, therefore, upon the one hand, was that the case was governed by the state, and upon the other hand that it was governed by the federal, Employers' Liability Act (Comp. St. §§ 8657-8665). The distinction is material, since certain common-law defenses, abrogated by the former, are still available under the latter.

It is clear that the trial court assumed that the state and not the national law applied, and the case was submitted to the jury upon that theory; and this presents the only question which it is necessary for us to consider. The jury returned a verdict in Burtch's favor, the judgment upon which was affirmed by the Supreme Court. 134 N. E. 858.

That the train carrying the cutter came from Louisville, Ky., is not disputed; but it is contended that there was no evidence from which it could be determined that the shipment originated there, or at any other point outside the state of Indiana; and the jury, in answer to certain interrogatories, so found. These interrogatories and answers are as follows:

'Did said car come in said train from Louisville, Ky., to Commisky?

'Ans. The train came from Louisville. No evidence where car came from.

'Did said cutter come to Commisky from Louisville, Ky?

'Ans. No evidence.'

If, in truth, there be no evidence from which these facts can be found, or if the evidence be conflicting, we can, of course, inquire no further. But if, on the contrary, the uncontradicted evidence affirmatively establishes that the shipment originated in Louisville, Ky., and thence was carried to Commisky, Ind., it was an interstate shipment, and neither the special findings nor the general verdict will preclude us from so holding. Lurton, the consignee, testified that he obtained the cutter 'through an Indianapolis concern, but it was shipped from a warehouse in Louisville,' and that the bill of lading was made out to him from Louisville to Commisky. Hartwell, a telegraph operator testified that the freight train came from Louisville, and 'this cutter was in one of the cars of that train that came from Louisville.' This constitutes the entire evidence upon the point and plainly establishes the interstate character of the shipment. But this is not enough. It is necessary to show further that 'the employee at the time of the injury [was] engaged in interstate transportation, or in work so closely related to it as to be practically a part of it.' Shanks v. Delaware, Lackawanna & Western R. Co., 239 U. S. 556, 558, 36 Sup. Ct. 188, 189 (60 L. Ed. 436, L. R. A. 1916C, 797).

There is a preliminary dispute as to whether Burtch stood in the relation of employee at the time of the injury, and this we first consider. The testimony shows that Burtch was not regularly employed, but that he engaged in this...