Fawcett v. Missouri Pacific Railroad Company, Civ. A. No. 8914.
Citation | 242 F. Supp. 675 |
Decision Date | 13 February 1965 |
Docket Number | Civ. A. No. 8914. |
Parties | Denia M. FAWCETT, Administratrix of the Estate of Floyd S. Fawcett v. MISSOURI PACIFIC RAILROAD COMPANY. |
Court | U.S. District Court — Western District of Louisiana |
Bass & Lawes, Lake Charles, La., for plaintiff.
Stewart & Bond, Lake Charles, La., for defendant.
This suit is under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60. Plaintiff brings it for the benefit of herself as widow, and for the benefit of her minor child, Shelly Anne Fawcett, age 13, both dependents of decedent (Floyd S. Fawcett).
Defendant, Missouri Pacific Railroad Company, has moved for summary judgment pegged on the proposition that the deceased, Fawcett, was not its employee at the time he was killed. The sole question is: Does a genuine issue of fact exist with respect to this contention?
When the motion first came on for argument, the Court deferred ruling and set it for a hearing. This was done to afford petitioners an opportunity to prove the existence of a factual dispute. Testimony was adduced and the matter is now here on the basis of the pleadings, the exhibits, the affidavits, and the oral testimony.
The record reveals that Fawcett was not, on the date of his death, nor was he ever, prior to said time, in the employ of the defendant. Admittedly, his regular employment was with the Missouri Pacific Truck Lines, Inc., a wholly owned subsidiary of defendant. The trucking company has an entirely separate corporation with its own officers and board of directors. It has a contract with defendant under which it transports freight over the highways rather than by rail.
At the time of his death (1) Fawcett was not hired by the railroad; (2) he was not on the railroad payroll; (3) he was not, in fact, paid by the railroad; (4) he was not subject to discharge by the railroad; (5) he was upon the railroad premises, but these premises were the subject of a lease agreement between the railroad and Fawcett's employer; (6) he was not using the railroad's tools; (7) the railroad furnished no material; (8) he was not doing work the railroad was required to do. His work consisted of loading and unloading which the consignee would otherwise do, in assisting in the transport of freight by highway transport for which the railroad was not licensed to do; (9) none of the railroad's employees were present at the time Fawcett met his death; and (10) none of the railroad employees had any supervision of Fawcett or his supervisors.
Plaintiff energetically urges that the jury should be permitted to decide whether or not Fawcett was in fact an employee of the railroad within the meaning of the Federal Employers' Liability Act. Reliance is placed on Baker, et al v. Texas & Pacific Railway Co., 1959, 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756. However, the Supreme Court there did not foreclose the possibility of summary judgment in cases where "reasonable men could not reach differing conclusions on the issue."
By brief plaintiff argues that there are three possibilities of a workman coming under the coverage of the Federal Employers' Liability Act:
Admittedly, the first two situations are not involved. Fawcett was working for the trucking company, on its payroll, and was not under the direction, supervision or control of the railroad.
There remains the third possibility, and there plaintiff relies primarily on Cimorelli,1 Roth,2 and Barlion.3 In those cases the contracts involved were cost plus and there was evidence that the railroads exercised some actual control and supervision of the performance of the services. Here, there was no control. The trucking company had an independent status and Fawcett was its bona fide employee.
As we analyze it, plaintiff's real contention is that because the trucking company is a wholly owned subsidiary of the defendant, it, the trucking company was the alter ego, adjunct, subsidiary agent, and instrumentality of the railroad. The jurisprudence as we read it is to the contrary. Atlantic Coastline R. R. Co. v. Shields, 5th Cir., 1955, 220 F.2d 242; Garrett v. Southern R. R. Co., 6th Cir., 1960, 278 F.2d 424; Kentucky Electric Power Co. v. Norton Coal Mining Co., 6th Cir., 1938, 93 F.2d 923; Taylor v. Standard Gas & Electric Co., 10th Cir., 1938, 96 F.2d 693. In a carefully considered opinion in the Kentucky Electric Power case, the Sixth Circuit stated:
We think this is a correct statement of the law. We adopt it. Plaintiff has alerted us to avoid intercompany arrangements drawn to avoid federal jurisdiction under the FELA. We find nothing here indicative of such a...
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42 498 Kelley v. Southern Pacific Company 8212 1270
...Co., 262 F.2d 906 (CA3 1958); Cimorelli v. New York Central R. Co., 148 F.2d 575 (CA6 1945). But see, e.g., Fawcett v. Missouri Pacific R. Co., D.C., 242 F.Supp. 675 (WDLa.1963), aff'd, 347 F.2d 233 (CA5 The case most clearly in point from another Court of Appeals is Smith v. Norfolk & West......
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Blanks v. Fluor Corp., ED 97810.
...Burlington & Quincy R.R. Co., 403 S.W.2d 233 (Mo. banc 1966). Turpin, in turn, quoted the federal case Fawcett v. Missouri Pac. RR Co., 242 F.Supp. 675, 677–78 (W.D.La.1965), and Fawcett in turn quoted language from Kentucky Elec. Power Co. v. Norton Coal Mining Co., 93 F.2d 923 (6th Cir.19......
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Turpin v. Chicago, B. & Q. R. Co.
...Co. v. Norton Coal Mining Co. (CA 6), 93 F.2d 923; Gaulden v. Southern Pacific Co. (DC Cal.), 78 F.Supp. 651; Fawcett v. Missouri Pacific Railroad Co. (DC La.), 242 F.Supp. 675, aff. CA 5, 347 F.2d 233. In the latter case the court said, in part, at 242 F.Supp., loc. cit. 677-678: 'As we an......
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