Watkins v. Thompson

• Citation: 72 F. Supp. 953
• Decision Date: 14 July 1947
• Docket Number: No. 5083.,5083.
• Parties: WATKINS v. THOMPSON.
• Court: U.S. District Court — Eastern District of Missouri

72 F. Supp. 953

WATKINS v. THOMPSON.

No. 5083.

District Court, E. D. Missouri, E. D.

July 14, 1947.

Mark D. Eagleton, of St. Louis, Mo., for plaintiff.

Cooper Turner, Jr., of Memphis, Tenn., and C. H. Skinker, Jr., of St. Louis, Mo., for defendant.

HULEN, District Judge.

Motion of defendant for judgment notwithstanding verdict and in the alternative for new trial, following judgment for plaintiff for $10,000 under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., is now before the Court.

Plaintiff desired employment as a switchman. Physical disability prevented his qualifying. He then made application for yard clerk work. He signed a "student" contract, "in order to properly qualify himself for the duties of such position". The contract required plaintiff to serve as a student without compensation for such time as defendant directed. Defendant's chief yard clerk introduced plaintiff to Mr. Donovan, a yard clerk, with instructions to follow Donovan's orders. Part of plaintiff's instructions consisted of performance of services for defendant. One of the duties of yard clerk was to check car numbers and seals on cars received and departing. There was a seal on the car door on each side of the car. Plaintiff and the yard clerk went into defendant's yards and under the yard clerk's direction checked the seals on a train of cars. Plaintiff checked the seals on one side of the cars while the yard clerk performed the same work on the other side, thus relieving the yard clerk of work on one side of the cars. Finishing this work the two went to a small house to get warm. They then started to another train of cars to make a check. It was necessary to go around or pass through a train of cars on an intervening track. The yard clerk passed between two cars. Up to this point there is no dispute in the testimony. One issue in the case was what the yard clerk's instructions to plaintiff were about going through the train of cars. In conformity with plaintiff's version of his instruction from the yard clerk he attempted to pass between two of the cars and in doing so he stepped on the coupling, at which time the train was moved, causing his foot to be caught in the coupling resulting in injury, the basis of recovery.

Defendant contends there was no evidence from which the jury could find plaintiff was an employee of the defendant at the time of his injury. Defendant would support its claim by a ruling of the United States Supreme Court. We consider this to call for a discussion of the point with some detail.

I.

The Federal Employers' Liability Act, 45 U.S.C.A. § 51, 53 Stat. 1404, provides: "Every common carrier by railroad while engaging in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * in whole or in part from the negligence of any of the * * * employees of such carrier * * *."

The rights which the Act creates are federal rights, and the federal decisions which have construed this Act must be accepted as controlling. The federal rules have been largely fashioned from the common law except as Congress has written them into the Act. Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.

An action under this section must be based on the relation of "employer" and "employee" between the railroad and the person injured at the time of injury. The Act defines neither term. As a result of such failure the courts have experienced no hesitation in stating the rules by which the relationship shall be determined. In Stevenson v. Lake Terminal R. Co., 6 Cir., 1930, 42 F.2d 357, loc. cit. 358, the court declared: "The Congressional failure to define the term `employee' in either the Safety Appliance Acts, 45 U.S.C.A. § 1 et seq. or the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, has evoked a large amount of litigation. See 45 U.S. C.A. § 51 * * *. And the Supreme Court has held that the term `employee' in the Employers' Liability Act describes the conventional relation of master and servant. Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 35 S.Ct 491, 59 L.Ed. 849; Hull v. Philadelphia & R. R. Co., 252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670 * *. This relation is usually dependent upon the right to direct the manner in which the work should be done (Chicago, R. I. & P. R. Co. v. Bond, supra, at page 456 of 240 U.S., 36 S.Ct. 403 60 L.Ed. 735) or, stated differently, its existence is determined by ascertaining whose work was being performed at the time of the injury. Linstead v. Chesapeake & Ohio R. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453. * * *" (Emphasis added.)

On the basis of the ruling of the Supreme Court in Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L. Ed. 849, that the word "employee" in the Act is used in its natural sense and is intended to describe the conventional relation of employer and employee, we find the federal cases announcing the test for such a relationship to be in harmony with the prevailing authority in many states. For illustration see The F. B. Squire, 2 Cir., 248 F. 469, 471, where the court, in considering the test to be applied in determining employer and employee relationship, said that inquiry must be made "whose is the work being performed" and that careful distinction must be made "between authoritative direction and control and mere suggestion as to details or necessary cooperation, where the work furnished is part of a larger undertaking." To the same effect is a ruling of the Eighth Circuit. In Harrell v. Atlas Portland Cement Co., 8 Cir., 250 F. 83, 85, the issue was whether plaintiff was an employee of a railroad or a cement company. The test applied was "Did the railway company or the cement company have the exclusive power to direct and control his action in doing the work he was performing at the time of his injury?" Applying this norm the opinion concludes: "that in the conduct of the work the plaintiff was performing, at the time of his injury, the cement company had and was exercising the exclusive power to control and direct how, when, and where he should do his work, that he was its servant and a fellow servant of the engineer and the members of the latter's crew."

The case of Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 255, 53 L.Ed. 480, is a leading authority on this subject. In that case the Court said: "The master is the person in whose business he the workman is engaged at the time, and who has the right to control and direct his conduct."

In the Anderson case the Court observes that many of the cases discuss the power of substitution or discharge, the payment of wages, and other circumstances bearing upon the relationship, but rules "* * * they, however, are not the ultimate facts, but only those more or less useful in determining whose is the work and whose is the power of control."

II.

Several federal railroad decisions have recognized the rule announced in the authorities cited and found that a servant or employee relationship results where a workman enters on a course of instruction with a railroad, without compensation, and performs services as part of his instructions. In Huntzicker v. Illinois Cent. R. Co., 6 Cir., 1904, 129 F. 548, 549, plaintiff's intestate desired employment in the service of defendant, and it was agreed that he should go upon the road and learn by observation the work of a flagman.

"He observed and inquired about the methods of the business, and was instructed therein, and participated in the performance of the duties of flagman under the direction and control of the conductor of the train. * * *

"Applying the controlling principles which we have indicated to the present case, it seems clear that Fereday at the time of his death was a servant of the defendant."

In McMillan v. Grand Trunk R. Co. of Canada, 1 Cir., 1904, 130 F. 827, plaintiff's intestate had gone to defendant's yard with an experienced servant for the purpose of receiving instructions as to manner of coupling cars and was killed while between cars attempting to make a coupling. In this case the court said, "It is not questioned that the deceased stood as a servant", citing the Huntzicker case.

We find no other federal decisions where the facts are similar to the present case. Decisions of state courts, where based on the same test as announced by the federal courts, we consider at least persuasive.

The Supreme Court of Missouri in 1926, in Brown v. Chicago, R. I. & P. R. Co., 315 Mo. 409, 286 S.W. 45, 49, a case under the Employers' Liability Act, was faced with the question now before this Court. Citing the Huntzicker decision as well as many of the cases to which we shall direct attention (before and after passage of the Act) and commenting on the test announced in those cases for determining the employment relationship, the court said: "Applying the foregoing test to the facts in the instant case, there can be little, if any, doubt that appellant retained the right to direct the manner in which deceased Brown should do the work assigned to him by the engineer and fireman who accompanied him, for they (acting for appellant) not only told Brown what should be done, but apparently instructed him how it should be done; in other words, that was part of the instruction which Brown was to receive for the purpose of qualifying him as a regular fireman. If a third person had been injured through Brown's negligent performance of the duties assigned to him, there can be no question that appellant would have been liable for Brown's negligent acts, although he received no pecuniary compensation for the performance of those duties. Haluptzok v. Railway Co., 55 Minn. 446, 57 N.W. 145, 26 L.R.A. 739."

In Millsaps v. Louisville, N. O. & T. Ry. Co., 1891, 69 Miss. 423, 13 So. 696, it was held that one working as fireman on a locomotive with the permission of the railroad company for...