Gulf & S. I. R. Co. v. Curtis

• Decision Date: 07 March 1927
• Docket Number: 26293
• Citation: 113 So. 195,146 Miss. 630
• Parties: GULF & S. I. R. CO. v. CURTIS. [*]
• Court: Mississippi Supreme Court

113 So. 195

146 Miss. 630

GULF & S. I. R. CO. v. CURTIS. ^[*]

No. 26293

Supreme Court of Mississippi

March 7, 1927

Division A

Suggestion of Error Overruled April 18, 1927.

APPEAL from circuit court of Jefferson Davis county.

HON. J Q. LANGSTON, Judge.

Action for Mrs. Ruby Curtis, administratrix of the estate of George D. Curtis, deceased, against the Gulf & Ship Island Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

T. J. Wills, for appellant.

The jury returned a verdict for fifteen thousand dollars for plaintiff. Defendant appeals alleging that deceased was engaged in interstate commerce; hence the Mississippi prima-facie statute was erroneously invoked.

The service which this train crew, including the deceased George D. Curtis, was performing was a link in the chain of the movements of the outbound loaded cars moving in interstate commerce from points on the New Orleans Great Northern Railroad via Columbia and over the Gulf & Ship Island Railroad to the northern markets and the movement of the empty cars coming from foreign lines to supply the needs of the New Orleans Great Northern in furnishing transportation facilities for shipments destined for points outside of and beyond the state of Mississippi. This movement was but a sector in the circle of the empty foreign cars that were moving into Gulf & Ship Island and New Orleans Great Northern points to be loaded with freight and consigned back in the direction of their home lines in the transportation system between the states. For cases throwing light on this point, see N. C. R. R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305; Eureka Pipe Line v. Hollan, 257 U.S. 265, 42 S.Ct. 101; Pedersen v. D. L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648; Shanks v. D. L. & W. R. R. Co., 239 U.S. 556, 36 S.Ct. 188; Erie R. R. Co. v. Collins, 253 U.S. 77, 40 S.Ct. 450; B. & O. S.W. R. R. Co. v. Settle et al., 260 U.S. 166, 43 S.Ct. 28.

It will be observed by the court that every one of the cars here was a foreign car. Not a one of the cars in this movement belonged either to the Gulf & Ship Island Railroad or the New Orleans Great Northern Railroad. They were empties belonging to foreign roads. They were being moved to Columbia where nineteen of them were for immediate delivery to the New Orleans Great Northern to be loaded in interstate commerce back home. It is shown that every car so ordered was ordered for the purpose of being loaded in interstate commerce. It is shown that every car delivered to the New Orleans Great Northern by the Gulf & Ship Island Railroad was loaded and moved in interstate commerce. It is further shown that the New Orleans Great Northern had a standing order or instructions to the conductor operating the New Orleans Great Northern train into Columbia that on the receipt of these cars they were to be carried from Columbia, Mississippi, to Bogalousa, Louisiana, to the yard for distribution in the fulfillment of orders for cars to be loaded in interstate commerce. Trowbridge v. Kansas City, etc., R. R. Co., 179 S.W. 777, is so nearly like the case at bar that it might be termed a "White Horse" case. See, also, Penn. R. R. Co. v. Knox, 218 F. 748; Champlain Co. v. Brottleboro, 260 U.S. 366, 43 S.Ct. 146; Hughes Bros. Timber Co. v. State of Minn., Adv. Op. 214, 47 S.Ct. 170.

From the authorities above cited the inevitable conclusion must be reached that the movement of the cars was an interstate movement. The appellant being engaged in interstate commerce in making the said movement and the deceased George D. Curtis being employed in making the said movement, the Federal statute applied.

The Federal statute applying, the Mississippi prima-facie statute is not controlling in this case. The Mississippi prima-facie statute, section 1985, Code of 1906, was before the supreme court of the United States on the question of its constitutionality in the Turnipseed case, 219 U.S. 35, in which the court held that the statute was constitutional and insofar as it was a rule of evidence in the state of Mississippi in cases tried under the state law, it was applicable. The prima-facie statute was invoked in three cases subsequent to the decision in the Turnipseed case brought under the Federal Employer's Liability Act. These cases went to the supreme court of the United States and that court held that the state law had no application to cases brought under the Federal Employer's Liability Act. See N. O. & N. E. R. R. Co. v. Harris, 247 U.S. 367; Y. & M. V. R. R. Co. v. Mullins, 249 U.S. 531; N. O. & N. E. R. R. Co. v. Scarlet, 249 U.S. 528.

Mounger & Mounger and C. E. Thompson, for appellee.

The court correctly ruled that the case was governed by the laws of Mississippi and that the Federal Employer's Liability Act did not control the case. Curtis was not engaged in interstate commerce. The rule is laid down by the supreme court of the United States in I. C. R. R. Co. v. Behrens, 58 L.Ed. 1051; C. B. & Q. R. R. Co. v. Herrington, 60 L.Ed. 941; Shanks v. Delaware & L. R. R. Co., 60 L.Ed. 436; Minn. & St. P. R. R. Co. v. Winters, 142 U.S. 355, 61 L.Ed. 358; Industrial Accident Commission v. Davis, 66 L.Ed. 888; B. & O. R. R. Co. v. Burtch, 263 U.S. 539, 68 L.Ed. 433; Miss. Cent. R. R. Co. v. Knight, 103 So. 377; Davis v. B. & O. R. R. Co., 10 F.2d 140.

"When the question arises whether the federal act applies, the burden is upon the person asserting it to show that the facts at the time of the happening abated the original and primary sovereignty of the state and permitted the exceptional and limited power of the federal government to attach." 18 R. C. L., Master & Servant, section 316, page 856; L. R. A. 1915C page 64; 12 A. L. R. 710; Miss. Cent. R. R. Co. v. Knight, 103 So. 377; Dupuis v. La. Ry, & Nav. Co., 99 So. 709; Kasulka v. L. & N. R. R. Co., 105 So. 187; Palermo v. Erie R. R. Co., 173 N.Y.S. 456.

We say, therefore, that it is not important how Curtis had been previously engaged or what was contemplated for the future, since nothing for the future had been fixed. The moving of the cars from Mendenhall to Columbia, which was the service in which he was engaged, was merely putting these cars in a convenient place, from which they could be taken and used as required, and so we say that we can apply to the case at bar the very words of Judge HUGHES in the Herrington case and these words refute the contention of the appellant.

For other authorities on this question, see: Section 663, Thornton's Federal Employer's Liability Act; L. & N. R. R. Co. v. Strange (Ky.), 161 S.W. 239; Palermo v. Erie R. R. Co., 173 N.Y.S. 456. We very strongly rely for affirmance upon the case of Miss. Cent. R. R. Co. v. Knight, 103 So. 377.

Argued orally by T. J. Wills, for appellant, and W. D. Mounger and C. E. Thompson, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a judgment for damages for the death of the appellee's intestate, alleged to have been caused by the negligence of the appellant.

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