Gieseking v. Litchfield & Madison Ry. Co., No. 33850.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation94 S.W.2d 375
PartiesWILLIAM GIESEKING v. LITCHFIELD & MADISON RAILWAY COMPANY, Appellant.
Docket NumberNo. 33850.
Decision Date23 April 1936
94 S.W.2d 375
WILLIAM GIESEKING
v.
LITCHFIELD & MADISON RAILWAY COMPANY, Appellant.
No. 33850.
Supreme Court of Missouri.
Division One, April 23, 1936.

[94 S.W.2d 376]

Appeal from Circuit Court of City of St. Louis.Hon. Charles B. Williams, Judge.

REVERSED AND REMANDED.

T.M. Pierce, Samuel H. Liberman and Burton K. Philips for appellant.

(1) Plaintiff's right to maintain this action for injuries received while employed by defendant in the State of Illinois is barred by the Workmen's Compensation Act of Illinois notwithstanding such injuries may have resulted from a violation of the Federal Safety Appliance Act. (a) The common-law right of action is abrogated by the Workmen's Compensation Act of Illinois. Chap. 48, Secs. 138-172, Smith-Hurd Ill. R.S. 1931; Chap. 48, Sec. 206, Ill. State Bar Statutes 1935. (b) The Workmen's Compensation Act of Illinois is not repugnant to the Federal Safety Appliance Act. Gilvary v. Railroad Co., 292 U.S. 57, 54 Sup. Ct. 573, 78 L. Ed. 1123; Moore v. Ry. Co., 291 U.S. 205, 54 Sup. Ct. 402, 78 L. Ed. 755; Minneapolis, etc., Ry. Co. v. Popplar, 237 U.S. 369, 35 Sup. Ct. 609, 59 L. Ed. 1000; Tipton v. Ry. Co., 78 Fed. (2d) 450; L. & N. Railroad Co. v. Nichols, 168 Tenn. 672, 80 S.W. (2d) 656. (c) Plaintiff was not within the Federal Employers' Liability Act and did not submit his case to the jury thereunder. Ill. Cent. Railroad Co. v. Behrens, 233 U.S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051. (2) The acceptance and retention by plaintiff of amounts paid to him under the Workmen's Compensation Act of Illinois in full settlement barred recovery by plaintiff. (a) Under the law of Illinois. Mitchell v. Railroad Co., 194 Ill. App. 77; Allen v. Am. Milling Co., 209 Ill. App. 73; Eckman v. Railroad Co., 169 Ill. 312. (b) Under the general law. Davis v. Wakelee, 156 U.S. 680, 15 Sup. Ct. 555, 39 L. Ed. 378; Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 37 Sup. Ct. 609, 61 L. Ed. 1229; The Princess Sophia, 35 Fed. (2d) 736; In re Famous Players Lasky Corp., 30 Fed. (2d) 402; In re Fred E. Sander, 212 Fed. 545; Brassel v. Electric Welding Co., 239 N.Y. 78, 145 N.E. 745. (3) The decisions and judgments of the courts of Illinois invoked by the defendant were entitled to full faith and credit under Section 1, Article IV of the Constitution of the United States. Royal Arcanum v. Green, 237 U.S. 531, 35 Sup. Ct. 724, 59 L. Ed. 1089; Modern Woodmen of America v. Mixer, 267 U.S. 544, 45 Sup. Ct. 389, 69 L. Ed. 783. (4) Plaintiff failed to prove the specific negligence pleaded. Pointer v. Mountain Ry. Const. Co., 269 Mo. 104, 189 S.W. 808; State ex rel. Macon v. Trimble, 321 Mo. 671, 12 S.W. (2d) 727. (5) Plaintiff's Instruction 1 was erroneous. (a) It was broader than the evidence in that there was no proof that the hand brake was worn and no proof that plaintiff applied the brake in the usual, proper or customary manner. Mitchell v. Ry. Co., 334 Mo. 926; State ex rel. Cent. Coal & Coke Co. v. Ellison, 270 Mo. 645. (b) It was broader than the pleadings in that it permitted a verdict based upon a finding that the hand brake was insufficient or inoperative generally, without limiting the jury to the specifically pleaded causes of the inoperative and inefficient condition. Mitchell v. Ry. Co., supra.

Louis E. Miller, William C. McLaughlin and Robert R. Adams for respondent.

(1) Plaintiff's right to recover for injuries received while engaged in interstate commerce and as a direct and proximate result of the defendant's violation of the Federal Safety Appliance Act is solely and exclusively governed by and limited to the provisions of the Federal Safety Appliance Act. Chap. 48, Sec. 142, Smith-Hurd Ill. R.S. 1931; Page v. Payne, 240 S.W. 156; Minn. & St. L. Railroad Co. v. Gottschall, 244 U.S. 66; Texas & P. Railroad Co. v. Rigsby, 241 U.S. 41; Leheigh Valley Railroad Co. v. Howell, 6 Fed. (2d) 784, certiorari denied 268 U.S. 695; Atlantic City Railroad Co. v. Parker, 242 U.S. 59; Thayer v. Railroad Co., 185 Pac. 542; Armetage v. Ry. Co., 54 Mont. 38; Gilvary v. Railroad Co., 292 U.S. 1123; Southern Ry. Co. v. Railroad Comm., 236 U.S. 439; Wagner v. Railroad Co., 265 Ill. 245, affirmed 239 U.S. 452; Ross v. Schooley, 247 Fed. 290. (a) Plaintiff was employed in interstate commerce at the time he was injured. Vandalia Railroad Co. v. Holland, 108 N.E. 580; Crandall v. Railroad Co., 127 Minn. 498; Southern Railroad Co. v. Jacobs, 116 Va. 189; Hall v. Railroad Co., 169 Ill. App. 12; Cott v. Railroad Co., 231 N.Y. 67, certiorari denied 257 U.S. 636; Kenna v. Calumet H. & Ser., 206 Ill. App. 17; N.Y. Cent. & Hudson River Railroad Co. v. Carr, 238 U.S. 260; Penn. Railroad Co. v. Donat, 239 U.S. 50. (2) The acceptance and retention by plaintiff of amounts paid to him under the Workmen's Compensation Act of Illinois does not bar the maintenance of the present action. Erie Ry. Co. v. Winfield, 244 U.S. 170; Ross v. Schooley, 247 Fed. 290; Philadelphia B. & W. Railroad Co. v. Schubert, 224 U.S. 603; Staley v. Ry. Co., 268 Ill. 356; Chicago, B. & Q. Railroad Co. v. McGuire, 219 U.S. 549; Wagner v. Railroad Co., 265 Ill. 245, affirmed 239 U.S. 452; Chicago & Alton v. Wagner, 239 U.S. 452; Waters v. Guile, 234 Fed. 536; Hogarty v. Railroad Co., 245 Pa. 443; Ward v. Erie Railroad Co., 230 N.Y. 230. (a) Illinois Compensation Commission is without authority to entertain and determine actions arising under Federal Safety Appliance Act and Federal Employers' Liability Act. Fulgham v. Railroad Co., 167 Fed. 660; Kenna v. Railroad Co., 284 Ill. 302; Jackson v. Industrial Board, 280 Ill. 526; Miller v. Railroad Co., 201 Ill. App. 519; Des Moines Union Ry. Co. v. Funk, 185 Iowa, 330; Heed v. Industrial Comm., 287 Ill. 505; Hines v. Industrial Comm., 295 Ill. 231; Wangerow v. Industrial Comm., 286 Ill. 446; C., R.I. & P. Railroad Co. v. Industrial Comm., 273 Ill. 528; C. & A. Railroad Co. v. Industrial Comm., 288 Ill. 604; Pittsburgh, C., C. & St. L. Railroad Co. v. Industrial Comm., 291 Ill. 396. (b) Acceptance of benefits under Workmen's Compensation Acts do not constitute a bar to the maintenance of an action in admiralty or under the maritime law. Newman v. Morse Dry Dock & Repair Co., 255 Fed. 97; Southern Pac. Co. v. Jensen, 244 U.S. 1086; Clyde Steamship Co. v. Walker, 244 U.S. 205; Gray v. New Orleans Dry Dock & Shipbuilding Co., 146 La. 826; Jordan v. Frederick Leland Co., 7 Fed. (2d) 386; Los Angeles Shipbuilding & Dry Dock Co. v. Industrial Acc. Comm., 57 Cal. App. 352. (c) Acceptance of payments under Workmen's Compensation Act for injuries sustained by reason of a defective safety appliance and while employee was engaged in interstate commerce, does not amount to an election of remedies, barring maintenance of action under the Federal Safety Appliance Act and Federal Employers' Liability Act. Kantleberg v. Standifer Const. Co., 7 Fed. (2d) 922; Doey v. Howland Co., Inc., 224 N.Y. 30; Southern Pac. Co. v. Jensen, 244 U.S. 1086; Clyde Steamship Co. v. Walker, 244 U.S. 205; Riegel v. Higgins, 241 Fed. 718; In re Larcy v. Hogan & Sons, 239 N.Y. 298; Waters v. Guile, 234 Fed. 532; Hogarty v. Railroad Co., 245 Pa. 443; Millers Indemnity Underwriters v. Brand, 266 U.S. 628. (3) There was substantial evidence offered by the plaintiff in support of the specific negligence pleaded and the jury was justified in finding that the hand brake in question was inoperative and inefficient. Page v. Payne, 240 S.W. 156; Detroit T. & I. Railroad Co. v. Hahn, 47 Fed. (2d) 59; Erie v. Irons, 48 Fed. (2d) 60; Sidinger v. Pa. Railroad Co., 29 Fed. (2d) 698; Minn. & St. L. Railroad Co. v. Gottschall, 244 U.S. 66.

HYDE, C.


This is an action for damages for personal injuries under the Federal Employers' Liability Act (45 U.S.C.A. 51-59) for a violation of the Federal Safety Appliance Act (45 U.S.C.A. 11). Failure to have an efficient handbrake on a car in use by defendant was the alleged violation of the Safety Appliance Act. Plaintiff's evidence showed that the handbrake did not stop the car, which he rode in making a drop switch, although he turned the wheel as far as he could turn it; that the brake staff was loose, shaky and wobbly; and that he was injured when this car collided with standing cars. Plaintiff had a verdict for $44,840.40. The trial court ordered a remittitur of $29,000 which was made and judgment was entered for $15,840.40. From this judgment defendant appealed.

[1] Defendant contends that its demurrer to the evidence at the close of the case should have been sustained, because plaintiff was injured in the State of Illinois. Defendant says that plaintiff's only right to compensation for his injuries was under the compulsory Illinois Workmen's Compensation Act; and that plaintiff cannot now claim under the Federal law because he did accept benefits of $159.60, awarded under the State act. Plaintiff's instructions required this amount to be deducted in the verdict from the total amount assessed by the jury as damages for plaintiff's injuries on the theory that this was authorized under Section 55, U.S.C.A., Title 45. Defendant's argument is also based upon its further contention that plaintiff was not engaged in the work of interstate transportation at the time he was injured. Although defendant does not concede that, if he was so engaged, the Federal Employers' Liability Act would apply notwithstanding the acceptance of benefits under the State Compensation Act, our view is that this is the rule because the Federal Act is exclusive in the field of interstate transportation. [See Erie Railway Co. v. Winfield, 244 U.S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057.] Moreover, the Illinois Act expressly excludes from its provisions employees whose injuries are covered by exclusive laws of the United States. [Chap. 48, sec. 142, Smith-Hurd Ill. Rev. Stat. 1931.] Defendant cites certain Admiralty cases holding that retaining State compensation payments waives the benefit of the Federal law. However,...

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  • Davis v. Chicago & E. I. Ry. Co., No. 32901.
    • United States
    • United States State Supreme Court of Missouri
    • April 23, 1936
    ...entertained doubt of his ability to prove the allegations essential to a recovery under the Federal Employers' Liability Act (45 U.S. 94 S.W.2d 375 C.A. §§ 51-59), a second count seeking recovery under the common law would have been proper [Miller v. Schaff (Mo.Sup.) 228 S.W. 488, 489(1); M......
1 cases
  • Davis v. Chicago & E. I. Ry. Co., No. 32901.
    • United States
    • United States State Supreme Court of Missouri
    • April 23, 1936
    ...entertained doubt of his ability to prove the allegations essential to a recovery under the Federal Employers' Liability Act (45 U.S. 94 S.W.2d 375 C.A. §§ 51-59), a second count seeking recovery under the common law would have been proper [Miller v. Schaff (Mo.Sup.) 228 S.W. 488, 489(1); M......

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