Harris v. Missouri Pac. R. Co.

• Decision Date: 09 April 1938
• Docket Number: 35032
• Parties: D. E. Harris v. Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

114 S.W.2d 988

342 Mo. 330

D. E. Harris v. Missouri Pacific Railroad Company, a Corporation, Appellant

No. 35032

Supreme Court of Missouri

April 9, 1938

Motion for Rehearing Overruled April 1, 1938.

Appeal from Christian Circuit Court; Hon Robert L. Gideon Judge.

Reversed.

T J. Cole, F. M. McDavid and F. W. Barrett, for appellant.

Federal Employers' Liability Act. 45 U.S.C. A., secs. 51-59. The test of employment is whether or not the employee, at the time of the injury, was engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Chicago & N.W. Ry. Co. v. Bolle, 76 L.Ed. 173; Chicago & Eastern Ill. Railroad Co. v. Industrial Comm., 76 L.Ed. 304; Rogers v. Mobile & O. Railroad Co., 85 S.W.2d 582; Harlan v. Wabash Ry. Co., 73 S.W.2d 753. An employee injured while engaged in the repair of a machine that is used to facilitate interstate commerce (such as a mowing machine) is not engaged in interstate commerce, since such work is too remote for it to be connected therewith. Penn. Railroad Co. v. Manning, 62 F.2d 293; Chicago & Eastern Ill. Railroad Co. v. Ind. Comm., 76 L.Ed. 304; Chicago & N.W. Ry. Co. v. Bolle, 76 L.Ed. 173; Southern Pac. Railroad Co. v. Industrial Comm., 264 P. 965; Shanks v. Delaware, L. & W. Railroad Co., 60 L.Ed. 436; Drew v. Mo. Pac. Railroad Co., 100 S.W.2d 516.

C. E. Reed, W. B. Myres, F. P. Sizer, H. G. Waltner, Jr., and Franklin E. Reagan, for respondent.

The evidence that respondent was injured in the scope of his duties under the direction of Mr. Bartlett, in repairing the weed cutting machine, made a clear case for the jury under the Federal Employers' Liability Act, and a demurrer to the evidence was therefore properly overruled. (a) Employee assisting in making temporary repairs on mowing machine, which was used to mow the main line of the defendant railroad in Kansas, Oklahoma and Arkansas, is engaged in interstate commerce, and the repair of such an instrumentality so used is as much a part of interstate commerce as the instrumentality itself. Oglesby v. Frisco, 1 S.W.2d 172, 318 Mo. 79, certiorari denied United States Supreme Court 72 L.Ed. 1001; Louisville & N. Railroad Co. v. Stewart's Admr., 207 Ky. 516, 269 S.W. 555; Harlan v. Wabash Ry. Co., 73 S.W.2d 749, 335 Mo. 414; Frisco v. Seale, 229 U.S. 162; Chicago, R. I. & P. Ry. Co. v. Abel, 182 Ark. 651, 32 S.W.2d 1059; Quirk v. Railroad Co., 139 N.E. 556; Searfoss v. Lehigh Valley Railroad Co., 76 F.2d 762; Chicago, R. I. & P. Ry. Co. v. Wright, 236 S.Ct. 185, 239 U.S. 548, 60 L.Ed. 431; Oregon Short Line v. Gubler, 9 F.2d 496; Clift v. St. Louis-S. F. Ry. Co., 9 S.W.2d 972, 320 Mo. 791; Kinzell v. Railroad Co., 250 U.S. 130, 63 L.Ed. 893; Velia v. Reading Co., 187 A. 495; Bamberger Elec. Co. v. Winslow, 45 F.2d 499; Agresta v. New York, O. & W. Ry. Co., 186 A. 817; Owens v. St. Louis-S. F. Ry. Co., 46 S.W.2d 930, 226 Mo.App. 226; Hadley v. Ohio Valley Elec. Ry. Co., 114 S.E. 572, 92 W.Va. 172; Steward v. Industrial Comm., 15 P.2d 335; Milburn v. Chicago, M. St. P. & P. Railroad Co., 56 S.W.2d 80, 331 Mo. 1171; Law v. Illinois Cent. Railroad Co., L. R. A. 1915C, 17, 208 F. 869; Baltimore & Ohio Railroad Co. v. Darling, 3 F.2d 987. (b) A mowing machine used by the defendant to keep its main line free from bushes, weeds and grass, and to protect its bridges and buildings from fire, and to keep its tracks and roadbed in a proper state of repair, is an instrumentality of interstate commerce. The work of keeping such instrumentality in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. Myres v. Chicago, B. & Q. Railroad Co., 246 S.W. 264, 296 Mo. 239; Prince v. Nashville, C. & St. L. Ry. Co., 274 S.W. 13, 152 Tenn. 189; Quirk v. Erie Ry. Co., 139 N.E. 556, 235 N.Y. 405; Freeman v. Frasher, 268 P. 538, 84 Col. 67; Louisville & N. Ry. Co. v. Blankenship, 74 So. 960, 199 Ala. 521; Miller v. Central Railroad Co. of N. J., 58 F.2d 635; Bennor v. Oregon-Washington Railroad & Nav. Co., 27 P.2d 1082; Philadelphia, Baltimore & Washington Railroad Co. v. Smith, 63 L.Ed. 869, 250 U.S. 101; Chesapeake & Ohio Ry. Co. v. Russo, 163 N.E. 283, 91 Ind.App. 648; Brock v. Ry. Co., 266 S.W. 691, 305 Mo. 502; Brown's Admr. v. Norfolk & W. Ry. Co., 12 F.2d 319; Wallace v. New York, N. H. & H. Railroad Co., 121 A. 878, 99 C. 404; McKinney v. Raydure, 203 S.W. 1084, 181 Ky. 163; Baker v. Nance Bros., 294 S.W. 290; Sawran v. Lehigh Valley Railroad Co., 279 N.Y.S. 786; McMahen v. Mo. Pac. Railroad Co., 53 S.W.2d 998; Morrison v. Terminal Railroad Assn., 57 S.W.2d 775; Dunkell v. Penn. Railroad Co., 163 A. 70, 106 Pa. St. 356; Northern Pac. Ry. Co. v. Maerkl, 198 F. 1; Pedersen v. Del. L. & W. Railroad Co., 57 L.Ed. 1125, 229 U.S. 146. (c) A mowing machine, placed on a side track for temporary repairs and testing and to be returned the same day to mowing the main line of defendant railroad, used for interstate commerce, remains an instrumentality of interstate commerce, and an employee injured in assisting in making such temporary repairs is engaged in interstate transportation, or in work so closely related to it as to be practically a part of it. Oglesby v. St. Louis-S. F. Ry. Co., 318 Mo. 79, 1 S.W.2d 172, 72 L.Ed. 1001; Law v. Illinois Cent. Railroad Co., L. R. A. 1915C, 17, 208 F. 869; Chicago, R. I. & P. Railroad Co. v. Abel, 32 S.W.2d 1059, 182 Ark. 651; Oregon Short Line Railroad Co. v. Gubler, 9 F.2d 494; Bamberger El. Railroad Co. v. Winslow, 45 F.2d 499.

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

OPINION

BRADLEY

This cause, for personal injury, was brought under the Federal Employers' Liability Act. [45 U.S.C. A Secs. 51-59.] The jury returned a verdict in favor of plaintiff for $ 40,000. On hearing of motion for new trial, a remittitur of $ 25,000 was made, judgment for $ 15,000 entered, motion overruled and defendant appealed.

The cause was filed in Stone County, but the venue was changed to Christian County. We first dispose of a motion to dismiss the appeal. There are several grounds alleged in the motion, but, in effect, they all go to the contention that the bill of exceptions was not filed. The record proper, among other things, shows the trial, the filing and overruling of motion for a new trial, the judgment, appeal, and then recites that thereafter and within the time granted, the bill of exceptions "was duly allowed, signed and sealed and ordered filed in said circuit court of Christian County, Missouri, and the same was duly filed in said court and order made and entered of record showing the filing thereof."

The abstract of the bill of exceptions recites that "now on this 7 day of September, 1936, comes the defendant, by its counsel, and asks that this, its bill of exceptions, be signed, sealed and made a part of the record of said cause. Which is accordingly done on this 7 day of September, 1936. Robert L. Gideon, Trial Judge."

The cause was set for hearing in this court on September 21, 1937. The motion to dismiss the appeal was served on defendant September 15, 1937. An additional abstract, in support of the motion, was served on defendant September 16, 1937, and filed here September 20, 1937, which additional abstract states that "since the printing of respondent's brief another bill of exceptions was found by the clerk a few days ago in his office, which shows the following endorsement on page 260, the last sheet thereof:

"Bill of Exceptions

"Now on this the 30th day of Oct., 1936, comes the defendant by its counsel, and asks that this, its bill of exceptions be signed, sealed and made a part of the record of said cause.

"Which is accordingly done this the 30th day of Oct., 1936.

"Robert L. Gideon,

"Trial Judge."

The additional abstract states that "stamped on the back of sheet 260 (of the bill of exceptions) are two indistinct filing stamps by the clerk as follows: Filed Oct. 30, 1936. Elmer Aven, Circuit Clerk." Then the additional abstract says: "Endorsed on the back of sheet 259 is a like stamp filing. On the back of sheet 258 is another like filing date, indistinct, but evidently intended for October 30th, 1936."

The additional abstract further shows that September 7, 1936, was the first day of the September Term of the court; that October 30th was the last day of the term; and that there was no record entry while court was in session, recess or vacation, showing the filing of the bill of exceptions.

Our Rule 11, among other things, provides: "If the respondent desires to make objections . . . that the bill of exceptions was duly signed or filed, or that the appeal was duly taken, such objections and the reasons therefor shall be served in writing on the appellant or his counsel, fifteen days before the day on which the cause is docketed for hearing, or within fifteen days after the abstract is served. Any such objections not so specified shall be deemed waived and will not be considered by the court." As above stated, the cause was set for hearing in this court, September 21, 1937, and it appears that copy of abstract was served on respondent July 30, 1937, and abstract filed here July 31st.

One of respondent's counsel filed an affidavit here stating that "on or about September 15, 1937, respondent's counsel for the first time learned" about the situation relative to the filing of the bill of exceptions. Appellant calls our attention to Rule 11, quoted in part, supra, and to State ex rel. Chester, P. & Ste. G. Ry. Co. v. Turner, et al., 270 Mo. 49, 191 S.W. 987. What we may call the Turner case grew out of the facts disclosed in Callier v Chester, P. & Ste. G. Ry. Co., 158 Mo.App. 249, 138 S.W. 660. Callier obtained a judgment against the railroad company,...