Benson v. Missouri Pac. R. Co.

• Citation: 69 S.W.2d 656,334 Mo. 851
• Parties: Beulah Benson v. Missouri Pacific Railroad Company, Appellant
• Decision Date: 23 February 1934
• Court: United States State Supreme Court of Missouri

69 S.W.2d 656

334 Mo. 851

Beulah Benson v. Missouri Pacific Railroad Company, Appellant

Supreme Court of Missouri

February 23, 1934

Motion to Transfer to Court in Banc Overruled February 23, 1934.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Edward J. White, Thomas Hackney, Leslie A. Welch and Richard H. Beeson for appellant.

(1) Benson's work as assistant general yardmaster was a vitally essential part of interstate transportation and was directly and immediately connected with the movement of interstate traffic. The question of liability or not for his fatal injury and death is, therefore, governed solely by the Federal Employers' Liability Act and not by the Missouri Workmen's Compensation Act. The circuit court erred in not so ruling. Railroad Co. v. Seale, 229 U.S. 186 33 S.Ct. 653; Railroad Co. v. Rosenbloom, 240 U.S 439, 36 S.Ct. 390; Railroad Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215; Pennsylvania Co. v. Donat, 239 U.S. 50, 36 S.Ct. 4; Railroad Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780; Railroad Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703; Railroad Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305; Railroad Co. v. Parker, 244 U.S. 13, 37 S.Ct. 4; Railroad Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556; Railroad Co. v. Smith, 250 U.S. 101, 39 S.Ct. 396; Railroad Co. v. Polk, 256 U.S. 332, 41 S.Ct. 518; Railroad Co. v. DiDonato, 256 U.S. 327, 41 S.Ct. 516; Railroad Co. v. Marcone, 281 U.S. 245, 50 S.Ct. 294; Railroad Co. v. Hancock, 253 U.S. 284, 40 S.Ct. 512; Wyatt v. Railroad Co., 45 F.2d 705; Spaw v. Railroad Co., 198 Mo.App. 552; Railroad Co. v. Monehan, 11 F.2d 212; Westover v. Railroad Co., 6 S.W.2d 847; Cott v. Railroad Co., 231 N.Y. 67, 131 N.E. 737; Sec. 753, Roberts, Federal Liability of Carriers. (2) It is well settled that if, in a train or drag, one or more cars are loaded or destined to be loaded with interstate shipments, then the entire train movement is regarded as part of interstate transportation, notwithstanding the greater part of the cars are loaded with intrastate freight. LaLone v. Terminal Ry. Co., 316 Mo. 841; Railroad Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305; Railroad Co. v. Hancock, 253 U.S. 284, 40 S.Ct. 513. (3) The building of the fire by Benson was a necessary and customary incident of and wholly consistent with, his night's work and partook of the character of that work as a whole, which embraced both kinds of commerce; and while building such fire, he was employed in interstate commerce. Railroad Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556; Railroad Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 309; Railroad Co. v. Marcone, 281 U.S. 345, 50 S.Ct. 296; Wyatt v. Railroad Co., 45 F.2d 705, certiorari denied 283 U.S. 829; Westover v. Railroad Co., 6 S.W.2d 847, certiorari denied 278 U.S. 632.

James P. Aylward and A. A. Ridge for respondent.

(1) At the time of the injury and death of Benson he was not engaged in any act pertaining to the movement of commerce in the yards over which he had supervision. Therefore, the question of liability for his fatal injury and death was not governed by the Federal Employers' Liability Act, but by the Missouri Workmen's Compensation Act. The test for determining liability under the Federal Employers' Liability Act is, was deceased, at the time of his injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it? Shanks v. Railroad Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436; Industrial Acc. Comm. v. Davis, 259 U.S. 182, 42 S.Ct. 489, 66 L.Ed. 888; Railroad Co. v. Industrial Comm., 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304; Railroad Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319; Railroad Co. v. Behrens, 233 U.S. 473, 58 L.Ed. 1051; Benson v. Bush, 104 Kan. 198, 178 P. 747; Railroad Co. v. Harrington, 241 U.S. 178, 60 L.Ed. 941. (2) The building of the fire by Benson was not referable or incidental to any duties which he was required to perform relating to interstate transportation and, therefore, liability for his injury and death is not governed by the Federal Employers' Liability Act. Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319; Benson v. Bush, 104 Kan. 198, 178 P. 747; Railroad Co. v. Armburg, 285 U.S. 234, 76 L.Ed. 729. (3) There being no dispute in the evidence, the circuit court was not bound by the commission's award in this case. Morrison v. Terminal Railroad Assn., 57 S.W.2d 777; Knoche v. Whitman, 86 Mo.App. 568; 22 C. J. 79.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Defendant railroad company appeals from a judgment of the Circuit Court of Jackson County at Kansas City, reversing an award of no compensation made by the Missouri Workmen's Compensation Commission and remanding the cause to the commission for further proceedings.

Plaintiff's claim was for compensation for the death of her husband, caused by accidental injuries suffered in the course of and arising out of his employment by the defendant. The commission based its award of no compensation upon the ground that, at the time of the injury, the employee, Oliver T. Benson, was engaged in interstate commerce, and therefore that the cause was exclusively covered by Federal law, to which by Section 3310a, Revised Statutes 1929, the Missouri Compensation Act does not apply. The Supreme Court of the United States has ruled often that, in the case of an employee who is injured or killed while he is engaged in interstate commerce, the rights and liabilities of the employer and employee are inclusively and exclusively regulated by the Federal Liability Act. [Sec. 51, Chap. 2, Title 45, Railroads, U.S. Code Annotated.] The Federal decisions hold that in the case of accidents so occurring no room exists for the operation of State Compensation Acts even in respect of injuries caused without fault of the employer, as to which the Federal Act provides no remedy. [New York Central Railroad Co. v. Winfield, 37 S.Ct. 546, 244 U.S. 147, 61 L.Ed. 1045, reversing 110 N.E. 614, 216 N.Y. 284, Ann. Cas. 1916A, 817.] The circuit court, by its judgment reversing the award of no compensation found that the employee, at the time of his injury, and death, "was not engaged in interstate transportation of commerce so as to bring his injury and death within the purview of the Federal Employers' Liability Act," and that the Missouri Workmen's Compensation Commission had jurisdiction to award compensation to the dependents of the deceased. The facts were not disputed at the hearing before the commission. It is for us to determine whether the Missouri Workmen's Compensation Act or the Federal Liability Act governs.

The deceased, Oliver T. Benson, was employed by defendant railroad company as assistant general yardmaster in zone 2, embracing what is known as the East Bottom railroad yards at Kansas City, Missouri. His hours of duty were from 6 P. M., to 6 A. M. At or about 10:30 P. M., May 10, 1932, Benson entered his office in the yards, and the night being chilly and damp, he set about to build a fire in a heating stove. He poured some kerosene upon the fuel in the stove. There was an instant explosion. Benson's clothes took fire and he received bodily burns from which he died two days later.

Benson, during his tour of duty, directed the make-up of outbound and break-up of inbound freight trains. His immediate superior was Earl H. Campbell, general yardmaster of the defendant railroad company. Both men went on duty at 6 P. M., May 10, 1932, and almost immediately they had a conference in Mr. Campbell's office at which they laid out the night's work in zone 2. They did this by means of reports before them. These reports were made up by yard clerks and consisted of the "turn-over" (cars then in the zone), and the "line up" of inbound trains (of which they had advance telegraphic information, giving the numbers, contents and destination of the constituent cars). They also checked special orders. The conference being ended, Benson went to his office and entered upon the discharge of his night's duties. Campbell dealt alone with his assistant general yardmasters, of whom there were two, one in charge of each of two zones. But Benson and the other assistant general yardmaster had assistant yardmasters under them. Benson was of the highest rank of servants of defendant to give orders to switching crews and assistant yardmasters touching the make-up, break-up and other disposition of freight trains.

The "turn over," that is, the freight cars in the zone when Benson took charge that night, consisted of 972 cars. Of these seven went out in trains that night to Wagner Oklahoma, fifteen to Wichita, Kansas, and forty-six to East line connections at St. Louis, Missouri. While Benson was on duty, from 6 P. M., to the time of his injury at 10:30 P. M., there came into the zone three freight trains and there departed seven. The times of arrival of the inbound trains and the places whence they came were as follows: 6:30 P. M., from Jefferson City, Missouri; 6:55 P. M., from Omaha, Nebraska, and Atchison, Kansas; 7 P. M., from Osawatomie, Kansas. The time of departure from zone 2 of the seven outbound trains was as follows: 7:25 P. M., for St. Louis, Missouri; 7:40 P. M., for Osawatomie, Kansas; 7:50 P. M., for Osawatomie, Kansas; 8:45 P. M., for Nevada, Missouri; 8:50 P. M., for St. Louis, Missouri; 10:15 P. M., for Osawatomie, Kansas; 10:30 P. M., for Myrick, Missouri. The trains departing at 10:15 and 10:30 P. M., were completed at 9:15 P. M., and 10 P. M., respectively. The train which departed for Myrick, Missouri, at 10:30 P. M., contained cars loaded with freight from Conroe, Texas; Eldorado, Kansas; Deweese,...