Gieseking v. Litchfield & Madison Ry. Co.

• Decision Date: 02 May 1939
• Docket Number: 36028
• Parties: William Gieseking v. Litchfield & Madison Railway Company, Appellant
• Court: Missouri Supreme Court

127 S.W.2d 700

344 Mo. 672

William Gieseking v. Litchfield & Madison Railway Company, Appellant

No. 36028

Supreme Court of Missouri

May 2, 1939

Motion for Rehearing Overruled April 1, 1939.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge; Opinion filed at September Term, 1938 March 8, 1938; motion for rehearing filed; motion overruled April 1, 1939; motion to transfer to Court en Banc filed motion overruled at May Term, 1939, May 2, 1939.

Affirmed.

Pierce, Liberman & Menzi for appellant.

(1) At the time of his alleged injuries plaintiff was not engaged in interstate transportation or in work so closely related to it as to be practically a part of it. (a) Having pleaded specifically the task in which he was engaged at the time of his alleged injury, it was incumbent on plaintiff to prove that this specifically pleaded task was employment in interstate commerce. Neither the evidence nor the instructions could enlarge or broaden the issue. Davis v. C. & E. I. Ry. Co., 338 Mo. 1248, 94 S.W.2d 370; McGrath v. Transit Co., 197 Mo. 97, 94 S.W. 872; Anderson v. Drain. & Levee Dist., 309 Mo. 189, 274 S.W. 448; Kleinlein v. Foskin, 321 Mo. 887, 13 S.W.2d 648; Farm & Home Savs. Assn. v. Armstrong, 337 Mo. 349, 85 S.W.2d 461; 49 C. J. 119, sec. 111. (b) The burden of proving by substantial probative evidence that he was engaged in interstate commerce at the time of his injury rested upon plaintiff. Siegel v. M. K. & T. Ry., 119 S.W.2d 376; Montgomery v. Terminal Railroad Assn., 335 Mo. 348, 73 S.W.2d 236; Jarvis v. C. B. & Q. Ry. Co., 327 Mo. 428, 37 S.W.2d 602. (c) The specifically pleaded operation in which plaintiff was engaged at the time of his injury involved only the movement of wholly intrastate cars. (d) The expectation that at the conclusion of this specifically pleaded movement the crew expected to engage in other work interstate in character does not change the nature of the commerce involved in the specifically pleaded movement. Ill. Cent. Ry. Co. v. Behrens, 233 U.S. 473; Erie Railroad Co. v. Welsh, 242 U.S. 304; Pope v. Utah-Idaho Cent. Ry. Co., 54 F.2d 575; Wise v. Lehigh Valley Ry. Co., 43 F. 692; Milburn v. C., M. & S. P. Ry. Co., 331 Mo. 1171, 56 S.W.2d 80. (e) Should the petition be construed as being broad enough to permit plaintiff to show he was engaged in a task other and different than the one he pleaded, there can be no recovery, because it appears affirmatively that the movement of the two cars was an independent task in itself which it was necessary for the crew to perform without regard to any other task. Erie Railroad Co. v. Welsh, 242 U.S. 304; Siegel v. M. K. & T. Ry. Co., 119 S.W.2d 376; Pope v. Utah-Idaho Cent. Ry. Co., 54 F.2d 575. It appears affirmatively that the movement of the two cars was one of a succession of separate, independent tasks required of the switching crew. Erie Railroad Co. v. Welsh, 242 U.S. 304; Rogers v. M. & O. Ry. Co., 337 Mo. 140, 85 S.W.2d 581. There was no evidence that the movement of the two cars was a mere incident to some other dominant, or superior, or primary task. Wise v. Lehigh Valley Ry. Co., 43 F.2d 692; Grigsby v. So. Ry. Co., 3 F.2d 988; Ill. Cent. Railroad Co. v. Perry, 242 U.S. 292; Siegel v. M. K. T. Ry. Co., 119 S.W.2d 376. There was no substantial evidence upon which a finding could be based that the cars were moved because they were in the way of an interstate car, or that the plaintiff was then engaged in a movement towards an interstate car for the purpose of delivering the same. (2) The acceptance and retention by the plaintiff of the moneys and benefits paid by defendant to plaintiff with the knowledge that they were paid in full settlement and discharge of liability bars the maintenance of this action as a matter of law. Mitchell v. Louisville & Nashville, 194 Ill.App. 77; Allen v. Amer. Milling Co., 209 Ill.App. 73; Eckman v. C. B. & Q. Ry. Co., 169 Ill. 312; Davis v. Wakelee, 156 U.S. 680, 15 S.Ct. 555, 39 L.Ed. 578; Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 37 S.Ct. 609, 61 L.Ed. 1229; Princess Sophia, 35 F.2d 736; In re Famous Players Lasky Corp., 30 F.2d 402; Brassel v. Electric Welding Co., 239 N.Y. 78, 145 N.E. 745. (3) Section 55 of the Federal Employers' Liability Act has no application to settlements and agreements between employer and employee after injury. Griffin v. New York, N. H. & H. Ry. Co., 279 Mass. 511, 181 N.E. 839; Anderson v. Oregon Short Line Ry. Co., 47 Utah 614, 155 P. 446; Patton v. A., T. & S. F. Ry. Co., 59 Okla. 155, 158 P. 576; Mitchell v. Louisville & N. Ry. Co., 194 Ill.App. 77; 2 Roberts, Federal Liabilities of Carriers, sec. 644, p. 1135. (4) The failure of the court to give effect to the judgments and decisions of the courts of Illinois constitutes a denial of full faith and credit in violation of Section 1, Article IV of the Constitution of the United States. Sovereign Camp of Woodmen of the World v. Bolin, 83 L.Ed. 58; Royal Arcanum v. Green, 237 U.S. 531, 35 S.Ct. 724, 59 L.Ed. 1089; Modern Woodmen of America v. Mixer, 267 U.S. 544, 45 S.Ct. 389, 69 L.Ed. 783. (5) Defendant was entitled to have the jury pass upon the pleaded defenses of release and estoppel as matters of fact, and the court erred in refusing to submit those defenses and in refusing to give Instruction 9 and Instruction 10. Clark v. Hammerle, 27 Mo. 55; Root v. Q., O. & K. C. Ry. Co., 237 Mo. 640, 141 S.W. 610; State ex rel. Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651; Vazis v. Zimmer, 209 S.W. 909; 64 C. J., pp. 600, 805, secs. 535, 672. (6) The court erred in modifying Instruction 4, requested by defendant, so as to require a finding that the sole purpose of the movement was the switching of the tank car. Ill. Cent. Railroad Co. v. Perry, 242 U.S. 292; Wise v. Lehigh Valley Ry. Co., 43 F.2d 692; Siegel v. M.-K.-T. Ry. Co., 119 S.W.2d 376. (7) Instruction 2 was erroneous. (a) The instruction was broader than the pleadings. Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 676; Krelitz v. Calcaterra, 33 S.W.2d 909; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W.2d 286; Stokes v. Godefroy Mfg. Co., 85 S.W.2d 434. (b) There was no evidence to support the findings permitted by the instruction. (c) It permitted findings which, under the evidence, were wholly inconsistent with each other and mutually contradictory.

Louis E. Miller and Robert R. Adams for respondent.

(1) If an empty railroad car is necessarily moved to place an interstate car at its final destination the primary purpose of the movement is interstate, as regards railroad's liability for injury to employee, under Federal Safety Appliance Act. Gieseking v. Litchfield & Madison Railroad Co., 94 S.W.2d 375; Ex parte Pennsylvania Railroad Co. v. Donat, 239 U.S. 50; McNatt v. Wabash Railroad Co., 108 S.W.2d 33; Howard v. M. & O. Railroad Co., 93 S.W.2d 272; Rogers v. M. & O. Railroad Co., 85 S.W.2d 583; Stottle v. C., R. I. & P. Ry. Co., 18 S.W.2d 433; N. Y. C. & H. R. Railroad Co. v. Carr, 238 U.S. 260; New York, New Haven & Hartford Ry. Co. v. Bezue, 284 U.S. 415; Chicago & Eastern Ill. Ry. Co. v. Industrial Comm. 284 U.S. 296; 2 Roberts Federal Liability of Carriers 1373, secs. 727, 728, 1375. (a) Since the pleadings have not been amended and the evidence on the retrial is substantially the same as on the first trial (but corroborated by uncontradicted additional proof of plaintiff's interstate employment), the opinion on the former appeal respecting plaintiff's engagement in interstate commerce properly applied and declared the law and is the law of the present case. State of Kansas ex rel. Winkle Terra Cotta Co. v. U.S. Fid. & Guar. Co., 40 S.W.2d 1053; Bradley v. Becker, 11 S.W.2d 10; Mangold v. Bacon, 237 Mo. Sup. 496; Coleman v. Northwestern Mut. Life Ins. Co., 233 S.W. 188; Scott v. Realty & Imp. Co., 255 Mo. 102. (b) The order and direction of defendant's switch foreman to drop the Southern box car temporarily into the Illinois Terminal connection to get rid of it in order that delivery of an interstate car might be made to its ultimate destination was not an expectation to engage in a future movement, but was a definite order and direction of work in interstate commerce, since the delivery of the interstate car could not be consummated unless and until the Southern box car was temporarily dropped and gotten rid of. (2) Since this court on a prior appeal has ruled that the acceptance of benefits under the Workmen's Compensation Act of Illinois will not operate as a bar to the prosecution of an action under the Federal Safety Appliance Act, the failure of the court to give effect to the decisions of the courts of Illinois does not amount to a denial of full faith and credit in violation of Section 1, Article IV of the Constitution of the United States, since two of said decisions have no application to any issue in the case at bar and the other has been expressly overruled by both the Supreme Court of Illinois and the Supreme Court of the United States. Wagner v. C. & A. Ry. Co., 265 Ill. 245, affirmed 239 U.S. 452; 15 C. J., sec. 315; Lee v. Mo. Pac. Ry. Co., 195 Mo. 422.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action under the Federal Employers' Liability Act (45 U.S.C. A., Secs. 51-59) for a violation of the Federal Safety Appliance Act (45 U.S.C. A., Sec. 11) in which judgment was reversed and remanded on former appeal because of failure to submit the issue of whether plaintiff was engaged in interstate transporation at the time of his injury. [Gieseking v. L. & M. Railroad Co., 339 Mo. 1, 94 S.W.2d 375.] Plaintiff was injured in the State of Illinois. The last trial resulted in a verdict for $ 44,840.40 (as before) for plaintiff. A remittitur of $ 20,000 was ordered and made. This appeal is from the...