Davis v. Chicago & E. I. Ry. Co.

• Decision Date: 23 April 1936
• Docket Number: No. 32901.,32901.
• Citation: 94 S.W.2d 370
• Court: Missouri Supreme Court
• Parties: DAVIS v. CHICAGO & E. I. RY. CO.

94 S.W.2d 370

DAVIS v. CHICAGO & E. I. RY. CO.

No. 32901.

Supreme Court of Missouri, Division No. 2.

April 23, 1936.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

Action by Frank B. Davis against the Chicago & Eastern Illinois Railway Company, wherein plaintiff obtained a verdict and judgment against defendant. From an order granting defendant a new trial, plaintiff appeals.

Affirmed.

Charles P. Noell, Charles L. Moore, Wm. C. McLaughlin, and Wm. H. Allen, all of St. Louis, for appellant.

Jones, Hocker, Gladney & Jones, Sullivan, Reeder & Finley, William O. Reeder, and Ralph T. Finley, all of St. Louis, for respondent.

BOHLING, Commissioner.

Frank B. Davis obtained a verdict and judgment of $12,500 against the Chicago & Eastern Illinois Railway Company, a common carrier corporation engaged in interstate commerce, for personal injuries sustained by plaintiff by reason of the violation by defendant of the federal statute known as the Boiler Inspection Act (45 U.S. C.A. § 23), and prosecutes this appeal from an order granting defendant a new trial.

In final analysis the main controversy revolves around the pleadings, and possibly the instructions, rather than the facts on the merits. Defendant makes no contention now that plaintiff failed to make a submissible case at common law under said Boiler Inspection Act. Therefore, but briefly of the facts:

Plaintiff was employed as a yard brakeman of defendant at West Frankfort, Ill., and was injured about 10:20 p. m. of that day, while engaged in the performance of his duties and standing on the front foot-board of one of defendant's engines, by reason of a cinder about the size of a 25-cent piece, emitted from the smokestack of the engine and hitting on a step leading to the running board of the engine within a few inches and immediately below the level of plaintiff's eyes, bursting and striking both of plaintiff's eyes, resulting in blinding his left eye and injuring his right eye. There was substantial evidence to the effect that the emission of cinders of the size of a 25-cent piece showed the equipment of the engine not to be in proper condition within the provisions of said section 23 of 45 U.S.C.A., section 2 of said Boiler Inspection Act as amended.

The litigants admit that plaintiff's petition (consisting of but one count) charges a violation of said section 23 of 45 U.S.C. A., section 2 of said Boiler Inspection Act, and that the injury occurred while defendant was engaged, and while plaintiff was employed by it, in interstate commerce, bringing the paper stated case within the Federal Employers' Liability Act, 45 U.S. C.A. §§ 51-59. It reads, after alleging defendant to be a common carrier, in this respect: "* * * and plaintiff states that on the 27th day of January, 1931, while the defendant was engaged in commerce between two or more of the several States of the United States, and he was employed by defendant in such commerce, he was severely and permanently injured * * *" And so stands the petition upon this appeal. Defendant's answer put in issue the allegations as to interstate commerce. Plaintiff readily admits the undisputed evidence establishes that, at the time plaintiff was injured, the engine in question was engaged in making an intrastate movement, and that plaintiff was not engaged at that time in interstate commerce.

With the allegation that the injury occurred while plaintiff was employed in interstate commerce, plaintiff's petition stated a good cause of action under the federal law; with it eliminated, a good cause of action would have been stated under the common law. Passing unquestioned issues, the quære is: May plaintiff, whose petition sets up a cause of action under the Federal Employers' Liability Act, upon the undisputed evidence establishing that at the time of the injury plaintiff was engaged in intrastate commerce, shift his position and recover under the common law of the state (that is, change his position from law to law), without amending his petition by striking therefrom the allegations with reference to plaintiff's being engaged in interstate commerce, in the face of a demurrer filed at the close of the evidence by defendant; and, if so, under what circumstances should such shifting from law to law be upheld? The following cases bear on the issue:

In Hilderbrand v. St. Louis-San Francisco R. Co., 220 Mo.App. 1229, 1236, 298 S.W. 1069, 1071[5], "the allegations of the petition were broad enough to include the hypothesis that defendant was engaged also in intrastate commerce"; and it appearing "that the allegation in the petition respecting interstate commerce was treated by the court and by both parties either as mere surplusage or as having been eliminated" (italics ours), the St. Louis Court of Appeals, giving effect to the rules of local practice, upheld plaintiff's shifting from the federal law to the common law without any amendment of the petition being sought or demanded by either party. The petition in the instant case specifically charges that at the time plaintiff was injured he was employed in interstate commerce, and nowhere in said petition, although it is broad enough, as in the Hilderbrand Case, to hypothesize that defendant was also engaged in intrastate commerce, is there any specific allegation from which it might be inferred that at the time of plaintiff's injury he was engaged in any commerce other than the interstate service rendered by defendant. But, be that as it may.

In Sullivan v. St. Louis-San Francisco R. Co., 321 Mo. 697, 705, 12 S.W.(2d) 735, 737[2], plaintiff amended his petition during the progress of the trial by striking out the averments as to his interstate employment, and this changing of the basis of recovery from the federal to the state law was upheld against defendant's contention the amendment changed the whole cause of action. In that case the amendment did not have any effect on the defense.

In Wabash R. Co. v. Hayes, 234 U.S. 86, 89, 34 S.Ct. 729, 58 L.Ed. 1226, a case arising in Illinois, upon the proof failing to show that the injury occurred in interstate commerce, the court, at the defendant's request, instructed the jury that the Federal Employers' Liability Act (45 U.S.C. A. §§ 51-59) had no application to the case; treated, over defendant's objection, the allegation respecting interstate commerce as eliminated; and, giving effect to a rule of local practice, submitted the case under the common law of the state. The Hayes Case is quoted and others are referred to in the Sullivan Case, supra.

In Jarvis v. Chicago, B. & Q. R. Co., 327 Mo. 428, 433, 37 S.W.(2d) 602, 603[2], plaintiff predicated his right to recover on the ground he was employed in interstate commerce at the time of the injury, and defendant pleaded that neither plaintiff nor defendant was engaged in interstate commerce at the time of plaintiff's injury and the Workmen's Compensation Act of the State of Illinois as defenses. That case was pleaded, tried, and submitted under the Federal Employers' Liability Act; and the action of the trial court in striking, upon motion, the allegations setting up said Workmen's Compensation Act from defendant's answer was upheld, because said act constituted no defense to a cause of action clearly pleaded as arising under the Federal Employers' Liability Act and not otherwise. See, also, Carter v. St. Louis, T. & E. R. Co., 307 Mo. 595, 606, 271 S.W. 358, 360[8].

Although the allegation that plaintiff was employed at the time of his injury in interstate commerce may be stricken from the petition upon leave granted (as in the Sullivan Case, supra, under certain conditions) or treated by the parties (as in the Hilderbrand Case, supra) as surplusage and eliminated from the case, the allegation is not "surplusage" within the general legal acceptance of that term as applied to pleadings; that is, where a petition, stating a good cause of action (for instance, statutory negligence and/or ordinance negligence), makes unnecessary averments stating an additional cause of action (for instance, common-law negligence) or other unnecessary facts, if the pleader establishes facts sufficient to make a case, he need not establish each of the several alleged grounds for recovery or the unnecessarily alleged facts as was the situation in the following cases: Callicotte v. Chicago Rock Island, etc., R. Co. (en banc) 274 Mo. 689, 693(3), 204 S.W. 529, 530[4]; Henry v. Cleveland, C. C. & St. L. R. Co., 332 Mo. 1072, 1076(4), 61 S.W.(2d) 340, 341[4]; Noell v. Chicago & E. I. R. Co. (Mo.App.) 21 S.W.(2d) 937, 943[12] and cases there cited — cited by plaintiff here. The allegation and its proof are material and essential to a statement of a cause of action and recovery under the Federal Employers' Liability Act. Midway Nat. Bank & Trust Co. v. Davis, 288 Mo. 563, 574(2), 233 S. W. 406, 408[3]. The allegation distinguishes the cause of action from one at common law [the Jarvis, Hayes, Sullivan, and Hilderbrand Cases, supra], and may preclude a defendant from asserting certain defenses to the cause of action otherwise available under the common or statutory law of the state governing plaintiff's cause of action. We know [Davis v. McColl, 179 Mo.App. 198, 204, 166 S.W. 1113, 1115(8); Wentz v. Chicago, B. & Q. R. Co., 259 Mo. 450, 463, 168 S.W. 1166, 1170(5), Ann.Cas.1916B, 317], for instance, the defense of contributory negligence is not available to a defendant under a petition seeking recovery under the Federal Employers' Liability Act to the same extent it might have been available had the cause of action been stated under the common law of this state. Carter Case, supra; Geraghty v. Lehigh Valley R. Co. (C.C.A.) 70 F.(2d) 300, 304[12]. Thus, the allegation was not only material to plaintiff's cause of action, but was a material averment precluding the presentation of defenses available in an action under the common law. [The Jarvis Case, supra, fully demonstrates...