Ecclesine v. Great Northern Ry. Co.
| Citation | 194 P. 143,58 Mont. 470 |
| Decision Date | 15 November 1920 |
| Docket Number | 4215. |
| Parties | ECCLESINE v. GREAT NORTHERN RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Action by Thomas C. Ecclesine against the Great Northern Railway Company. From a judgment for plaintiff and a denial of a new trial, defendant appeals. Reversed and remanded.
H. C Hopkins, of Butte, and I. Parker Veazey, Jr., of Great Falls for appellant.
B. K Wheeler, of Butte, and A. A. Grorud, of Helena, for respondent.
Plaintiff recovered judgment for damages for personal injuries, and defendant appealed therefrom and from an order denying a new trial.
A general demurrer was interposed to the complaint, but overruled by the trial court, and error is predicated upon the ruling. The specific objection urged is that the complaint fails to allege that plaintiff was employed by the defendant at the time he received his injuries, or at all. It is not alleged that he was a passenger upon the defendant's train; neither can any fair inference be drawn from the pleading that plaintiff and defendant sustained any particular relationship whatever one to the other. The complaint cannot be sustained.
1. It is fatally defective if the action be treated as one arising under the federal Employers' Liability Act (35 Stat. at Large, 65 [U. S. Comp. St. §§ 8657-8665]). That act extends its provisions only to an employee of a common carrier by railway engaged in interstate commerce, and to no other person or class of persons. Robinson v. Baltimore & O. R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849. To make out a case under that statute it is indispensable that the complaint disclose by an appropriate allegation that at the time of the accident the injured party was employed by the defendant. 2 Roberts on Federal Liability of Carriers, § 682.
2. The same rule applies if the action be considered as one arising under our state Employers' Liability Act (Laws of 1911, c. 29) for our statute is in all substantial particulars a copy of the federal act. Cornell v. Great Northern Ry. Co., 57 Mont. 177, 187 P. 902.
3. If it was the intention of plaintiff to invoke the provision of the federal Safety Appliance Act (27 Stat. 531, as amended 32 Stat. 943, and supplemented 36 Stat. 298 [U. S. Comp. St. § 8605 et seq.]), the complaint is equally defective. In enacting the original statute above, the congressional purpose was clearly defined and declared in the title, "To promote the safety of employees and travelers upon railroads," and the term "travelers" refers to passengers. Illinois Central R. Co., v. Williams, 242 U.S. 462, 37 S.Ct. 128, 61 L.Ed. 437. These two classes of persons, and only these, are comprehended by the act, and neither the amendment nor the supplement enlarges the scope in this respect. Whether these acts by necessary implication provide a remedy at the instance of a private individual belonging to either of the classes mentioned, or merely give recognition to a right arising under the rules of the common law, is not material here. The state courts are given concurrent jurisdiction in civil actions arising under these statutes, and matters of pleading and practice are governed by the local laws. 2 Roberts on Federal Liability of Carriers, § 878. If it can be said that this is a statutory action arising under the Safety Appliance Act, as appears to be indicated in Texas & P. Ry. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874, it is indispensable that, by appropriate pleading, plaintiff shall bring himself within one of the two classes for whose benefit the statute was enacted. This is the rule now too firmly established in this jurisdiction to admit of controversy. Kelly v. Northern P. Ry. Co., 35 Mont. 243, 88 P. 1009; Daily v. Marshall, 47 Mont. 377, 133 P. 681.
4. Neither can this complaint be sustained upon the theory that this is the ordinary action for damages for personal injuries resulting from negligence. Actionable negligence arises only from a breach of legal duty, and to state a cause of action for damages resulting from negligence, it is necessary...
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