Amann v. Northern Pac. Ry. Co.

• Decision Date: 06 February 1956
• Docket Number: No. 9286,9286
• Parties: Paul AMANN, Plaintiff and Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY and C. L. Buettner, Defendants and Respondents.
• Court: Montana Supreme Court

Page 753

292 P.2d 753

130 Mont. 11

Paul AMANN, Plaintiff and Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY and C. L. Buettner,

Defendants and Respondents.

No. 9286.

Supreme Court of Montana.

Submitted June 27, 1955.

Decided Dec. 8, 1955.

Rehearing Denied Feb. 6, 1956.

Berg & Pfohl, Livingston, Doepker & Hennessey, Butte, Ben E. Berg, Jr., and M. J. Doepker, argued orally, for appellant.

Coleman, Jameson & Lamey and Cale John Crowley, Billings, Cale John Crowley, argued orally, for respondents.

ADAIR, Chief Justice.

Appeal from a judgment on the pleadings given and entered for the defendant railway company in a tort action brought against it and one C. L. Buettner by the plaintiff Paul Amann, wherein he seeks to recover both actual and exemplary damages for injuries sustained by plaintiff in a fight with Buettner occurring on December 1, 1948, at a time when plaintiff was shop foreman and Buettner a repairman in the defendant Northern Pacific Railway Company's repair shop at Livingston, Montana.

The pleadings herein are: (1) The complaint; (2) the defendant railway company's general demurrer thereto; (3) the defendant railway's separate answer to the complaint; (4) the plaintiff's reply to the railway's answer and (5) the defendant railway's motion for judgment on the pleadings.

The complaint alleges that immediately following the fight the defendant railway company was furnished a full report and notice of all the facts and circumstances under which the injuries to plaintiff were inflicted and that thereafter and at all times since it has retained the said C. L. Buettner in its employ and has fully ratified the action of the said employee in the infliction of said injuries on and to plaintiff.

By its separate answer the defendant interstate railway company admits (1) the employment of both Buettner and the plaintiff Amann, (2) the fight between the two, (3) the railway's ensuing investigation thereof and its decision to retain Buettner in its employ and to discharge the plaintiff Amann therefrom and for a separate affirmative defense and by way of new matter the defendant railway company pleads and sets forth the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51, alleging such Act to have been in full force and effect on December 1, 1948, when the fight occurred.

By his reply the plaintiff admits that the Federal Employers' Liability Act was in full force and effect on the day of the fight.

Thereafter on due notice to plaintiff the defendant railway company interposed a motion for judgment on the pleadings which motion the trial court granted following which it gave and caused to be entered its judgment that plaintiff take nothing by his action against the defendant railway company. Plaintiff's appeal is from that judgment.

The liability of the defendant railway company is to be determined and measured by the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51. In other words any recovery in his action must be had under the provisions of the Federal Employers' Liability Act as it has been construed by the federal courts.

In Young v. New York Central R. Co., 88 Ohio App. 352, 88 N.E.2d 220, 223, certiorari denied 339 U.S. 986, 70 S.Ct. 1008, 94 L.Ed. 1388, it appears that one railway employee had assaulted another railway employee while both were on duty for the railway. In affirming a judgment for the railway entered upon a directed verdict the Ohio Court said: 'Cases involving circumstances similar to those of the instant case have heretofore been considered and decided by the Federal Courts and the interpretation placed upon the Federal Employers' Liability Act by such decisions must be followed by this court in the instant case insofar as they are applicable.

'In the case of Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 124, 67 L.Ed. 229, the Supreme Court of the United States reversed [a judgment of] the Supreme Court of Mississippi, Hines v. Green, 125 Miss. 476, 87 So. 649, which had affirmed the lower court decision holding the railroad company liable where an employee who was a conductor, had been killed by an engineer, a fellow employee of decedent, where the evidence disclosed that the company had employed a dangerous man with notice of his dangerous propensities.

'Mr. Justice Holmes, speaking for the court, said: 'The ground on which the Railroad Company was held was that it had negligently employed a dangerous man with notice of his characteristics, and that the killing occurred in the course of the engineer's employment. But neither allegations nor proof present the killing as done to further the master's business or as anything but a wanton and wilful act done to satisfy the temper or spite of the engineer. Whatever may be the law of Mississippi a railroad company is not liable for such an act under the statutes of the United States.'

'To the same effect is the later decision of the United States Supreme Court in the case of Atlantic Coast Line Railroad Co. v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157, which involved similar facts.

'The following cases follow the same reasoning: St. Louis-San Francisco Railroad Co. v. Mills, 1926, 271 U.S. 344, 46 S.Ct. 520, 70 L.Ed. 979; Atlanta & Charlotte Air Line Railroad Co. v. Green, 1929, 279 U.S. 821, 49 S.Ct. 350, 73 L.Ed. 976, reversing per curiam 151 S.C. 1, 148 S.E. 633.'

In Atlantic Coast Line R. Co. v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157, the Supreme Court of the United States reversed a decision of the Supreme Court of North Carolina, 191 N.C. 153, 131 S.E. 670, affirming a judgment for the plaintiff in a tort action wherein it appeared that one railway employee shot and killed another employee of such railway while both were on the job and between whom there was ill will which fact was then known to the railway's superintendent. There the United States Supreme Court followed Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299, from which it quoted in Young v. New York Central R. Co., supra.

In the instant appeal plaintiff's counsel contend that Davis v. Green, supra, and Atlantic Coast Line R. Co. v. Southwell, supra, were, in effect, reversed by the later case of Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73, decided November 27, 1947, but, as is shown above, both the Green case and the Southwell case were cited and followed in the more recent case of Young v. New York Central R. Co., supra, wherein the plaintiff's petition for certiorari was denied by the United States Supreme Court on June 5, 1950.

In the Young case, 88 Ohio App. at page 358, 88 N.E.2d at page 223, the Ohio court clearly distinguished the case of Lillie v. Thompson, supra, and it is quite manifest that had the latter decision reversed the Green case and the Southwell case as is here claimed by plaintiff, the United States Supreme Court would not have denied the plaintiff's petition for a writ of certiorari in the Young case, based as it was on substantially the same facts as well as the same federal statute.

In Sheaf v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 162 F.2d 110, 113, the court dismissed the complaint on issues quite similar to those involved in the instant appeal. It there appeared that the plaintiff Sheaf, the conductor on a train, was assaulted by Johnson who was the engineer on the same train. There the federal court said: 'Johnson, it was alleged, had been a quarrelsome and vicious person for many years prior to the assault on plaintiff, all of which was known to the railroad company, or which by the exercise of ordinary care should have been known to it. That since the assault the company has ratified the acts of Johnson by retaining him in its service. His employment under the circumstances constituted negligence.'

In holding the complaint insufficient the court said: 'Where, as in this case, an employee of a railroad company is injured by an unprovoked assault of a fellow servant, even though such an assault may be considered negligence rather than a trespass, the employer is not liable unless the agressor was at the time of the assault acting within the scope of his employment. In the case of Davis v. Green [citing and quoting from Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299].

'So in the instant case the unprovoked attack of Johnson upon the plaintiff occurred while they were both employed by the defendant railroad company, but the attack was in no way intended to further the business of the company and was not within the scope of Johnson's employment. The decision of the Supreme Court in the case of Atlantic Coast Line R. Co. v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157, applies the same principle to similar facts; and neither or these cases has since been expressly overruled by the Supreme Court.'

The above case is cited and followed upon similar facts and the construction of the same statute in the following cases decided from 1949 to 1950 all citing and relying upon the cases of Davis v. Green and Atlantic Coast Line R. Co. v. Southwell, supra, namely, Hoyt v. Thompson, 7 Cir., 174 F.2d 284, 285; Smith v. Lehigh Valley R. Co., 2 Cir., 174 F.2d 592, 594; Lavender v. Illinois Central R. Co., 358 Mo. 1160, 219 S.W.2d 353, 358, certiorari denied in 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499. See also Reeve v. Northern Pac. Ry. Co., 82 Wash. 268, 144 P. 63, L.R.A.1915C, 37; and Blunk v. Atchison, T. & S. F. Ry. Co., 97 Cal.App.2d 229, 217 P.2d 494, 497; Lanners v. Atchison, T. & S. F. Ry. Co., 344 Ill.App. 123, 99 N.E.2d 705; Bocian v. Union Pac. R. Co., 137 Neb. 318, 289 N.W. 372 also cites and follows the case of Davis v. Green, supra.

There is a clear distinction between the cases construing the Federal Employers' Liability Act, Title 45 U.S.C.A. Sec. 51, and the cases cited by the plaintiff construing the Jones Act relating to vessels at sea, 46 U.S.C.A. Sec. 688, which distinction is pointed out in Young v. New...