Hein v. Great N. R. Co.

• Decision Date: 20 July 1916
• Citation: 34 N.D. 440,159 N.W. 14
• Parties: HEIN v. GREAT NORTHERN R. CO.
• Court: North Dakota Supreme Court

34 N.D. 440

159 N.W. 14

HEIN

v.GREAT NORTHERN R. CO.

Supreme Court of North Dakota.

July 20, 1916.

Syllabus by the Court.

Plaintiff, wife of Michael Hein, deceased, recovered a judgment for his death occasioned through negligence of defendant based upon the state statutes (sections 8321-8323, C. L. 1913).

Deceased was killed in a collision while driving an engine of defendant, hauling a loaded gravel train en route from Palermo, N. D., into Montana. The gravel was for use in Montana as railway ballast.

Motion for a directed verdict upon the ground that recovery was barred by the federal Employers' Liability Act, April 2, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665) was denied. Verdict for $4,000 was returned; defendant appeals.

Held, it is not necessary that the benefits of the federal act be claimed by answer. The motion for a directed verdict invoked said statute.

Under the proof the federal act operated to supersede the state statutes upon the authority of which rests plaintiff's right to maintain this action.

Under the federal act plaintiff could not sue as an individual. Under the statute suit must be brought by personal representative of the deceased, and this action controlled by it should have been dismissed upon the motion for a directed verdict.

When it was proven that deceased was operating an engine of defendant, hauling a freight train for a part of a continuous haul from North Dakota into Montana, though another train crew would have taken the train at Williston into Montana, defendant was shown to have been engaged at the time of the accident in interstate commerce, irrespective of the fact that the matter transported was material for its use upon its own lines in repair work; nor was it necessary to invoke the provisions of the act, that the proof disclose that such materials were to be used upon its main line, as distinguished from side tracks or branch lines. Transportation of gravel by said common carrier across state lines is interstate commerce within the meaning of the federal Employers' Liability Act, under the federal decisions controlling upon state courts.

As deceased came to his death when engaged in facilitating interstate commerce then being carried on by defendant, any recovery must be under the federal act to the exclusion of state statutes.

The verdict and judgment entered thereon is ordered set aside and this action dismissed.

Appeal from District Court, Ward County; Leighton, Judge.

Action by Florence Hein against the Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and dismissal directed.

Murphy & Toner, of Grand Forks, for appellant. E. R. Sinkler and Geo. A. McGee, both of Minot, and Francis J. Murphy, of Bismarck, for respondent.

GOSS, J.

Plaintiff, widow of Michael Hein, deceased, sues under the state statutes governing recovery for death by wrongful act. Sections 8321-8323, C. L. 1913. The complaint pleads acts of alleged negligence as having caused the death of Michael Hein.

The proof establishes that deceased came to his death through a collision between two gravel trains both hauling gravel en route to Montana, but at the time within this state. At the close of the testimony the court denied a motion for a directed verdict of dismissal, based “on the ground that the undisputed evidence discloses that this case is one in which the Great Northern Company's liability, if any, is controlled by the federal statute known as the Employers' Liability Law; and if liable, said company is only liable to the personal representative of the deceased, Michael Hein, and not to the plaintiff; and that the party plaintiff here is not the real party in interest, or a person having a cause of action against said defendant railroad company.” A verdict for $4,000 was returned.

[1] Assignments based upon the denial of said motion, test plaintiff's right to maintain this action and sustain her recovery. Two questions necessary of decision are raised: (1) Does the federal Employers' Liability Act apply under the proof? (2) Can the benefit of federal statutes be invoked by a directed verdict where the answer makes no reference to such as a defense, or at all? This latter question first discussed is answered in the syllabus of G. T. W. Ry. Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168, that:

“The operation and effect of the Employers' Liability Act upon the rights of the parties is involved in an action for negligence where the complaint alleges and the proof establishes that the employé was engaged in, and the injury occurred in the course of, interstate commerce even though the act was not referred to in the pleadings or pressed at the trial.”

Of the same contention here made, the opinion reads:

“This simply amounts to saying that the Employers' Liability Act may not be applied to a situation which is within its provisions unless in express terms the provisions of the act be formally invoked. Aside from its manifest unsoundness considered as an original proposition the contention is not open as it was expressly foreclosed in Seaboard Air Line Ry. Co. v. Duvall, 225 U. S. 477-482 , 56 L. Ed. 1171.”

Or in the words of the note to Lamphere v. O. R. & N. Co., 47 L. R. A. (N. S.) 75:

“In order to have the benefit of the federal act, it is not necessary that the act be mentioned, or that the plaintiff claim that he is suing under the act.”

And if true as to a plaintiff, it should likewise be true as to a defendant.

“The authorities all agree with the reported case that it is not necessary, in order to entitle a plaintiff to a recovery under the federal Employers' Liability Act, that the statute should be expressly referred to in the complaint, as the court is presumed to be cognizant of the enactment, and where the facts alleged bring the case within the act, full effect must be given to it. * * * On the same grounds where the case made by the evidence is within the federal act the defendant is entitled to the benefit of its provisions, though neither party has pleaded the act.” Quoting from note to Ann. Cas. 1914C, at page 171, citing St. Louis, etc., Ry. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156.

The motion to dismiss invoked the federal Employers' Liability Act as fully under the proof made as though it had also been raised by answer.

[2][3][4][5] The other question is in order; i. e., whether under the proof it is established that the deceased employé, at the time of his death, was operating an instrumentality engaged in interstate commerce, with recovery therefor governed by the federal act, to the exclusion of said state statutes under which this action is brought. Concededly the engine was in charge of Hein as engineer, at the time of his death, and was hauling a train load of gravel “going to the Montana division” to be used for “ballasting the track on the Montana division.” The gravel train was to be turned over to another crew at Williston “to go into Montana.” The engine Hein was operating was hauling gravel from the Palermo pit to the Montana division. All this respondent admits but claims that this is insufficient to establish that either the defendant or the train was engaged in interstate commerce within the provisions of the federal Employers' Liability Act, requiring suit to be brought by the personal representative and superseding the state statute permitting the surviving wife to sue. Instead, counsel in respondent's brief asserts that:

“As far as the evidence discloses the gravel could be used on some feeder or branch of the Montana division, or upon some side track of the Montana division. The proof does not show that it was to be used on the main line.”

And:

“The mere fact of hauling gravel from one state to another for its own use does not show that the defendant was engaged in interstate commerce; in fact it does not even show that it was commerce that defendant was engaged in.”

In short plaintiff asserts that in hauling its own gravel trains across the state line loaded with gravel procured in this state for use as ballast in Montana, defendant was not...