Hogarty v. Philadelphia & R. Ry. Co.

• Decision Date: 22 May 1914
• Docket Number: 92
• Citation: 245 Pa. 443,91 A. 854
• Parties: Hogarty, Appellant, v. Philadelphia & Reading Railway Co
• Court: Pennsylvania Supreme Court

91 A. 854

245 Pa. 443

Hogarty, Appellant, v. Philadelphia & Reading Railway Co

No. 92

Supreme Court of Pennsylvania

May 22, 1914

Argued March 30, 1914

Appeal, No. 92, Jan. T., 1914, by plaintiff, from judgment of C.P. No. 5, Philadelphia Co., March T., 1911, No. 1636, on directed verdict for defendant in case of William J. Hogarty v. Philadelphia and Reading Railway Company. Reversed.

Trespass to recover damages for personal injuries Before RALSTON, J.

The opinion of the Supreme Court states the facts.

Verdict for defendant by direction of the court, and judgment thereon. Plaintiff appealed.

Error assigned was in directing a verdict for the defendant.

The learned court below erred in giving binding instructions for the defendant; the assignments are sustained and the judgment is reversed with a venire facias de novo.

Ira J Williams, of Simpson, Brown & Williams, for appellants. -- As it is admitted that the injuries occurred while plaintiff and defendant were engaged in interstate commerce, the defense that plaintiff had accepted benefits as a member of defendant's relief association is rendered unavailable by the Act of Congress of April 22, 1908, 35 Stat. 65, Chap 149: No. Carolina R.R. Co. v. Zachary, U.S. S.Ct. Adv. Sheets, March 1, 1914, page 305.

Wm. Clarke Mason, for appellee, cited: Mondou v. Railroad Company, 223 U.S. 1; St. Louis, &c., Ry. Co. v. Seale, 229 U.S. 156; North Carolina R. Co. v. Zachary, 34 Supreme Ct. Repr. 305; Allen v. Railroad Co., 229 Pa. 97; Union Pacific Ry. Co. v. Wyler, 158 U.S. 285; Johnson v. Railroad Co., 163 Pa. 127; Ringle v. Railroad Co., 164 Pa. 529; Reese v. Railroad Co., 229 Pa. 340.

Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

On February 1, 1910, William J. Hogarty, an employee of the Philadelphia & Reading Railway Company, while working on a freight train, met with an accident which caused him to lose his right arm. The plaintiff charged in his declaration that the casualty was due to the negligent construction and maintenance of the defendant's road. The trial court first gave binding instructions for the defendant, and then entered judgment in its favor; the plaintiff has appealed.

The uncontradicted evidence was sufficient to go to the jury on all the issues usually involved in a case of this character; but the defendant proved that the plaintiff had accepted benefits as a member of its relief association, and contended that this was a bar to his recovery; citing Reese v. Railroad Co., 229 Pa. 340, and other cases. The plaintiff rejoined by formally calling attention to the Act of Congress of April 22, 1908 (35 Stat. 65, Chap. 149), which, inter alia, forbids the defense in question in cases arising from accidents happening to employees of railroads while engaged in interstate commerce; and it was formally agreed at the trial that this accident happened in the course of, and while the plaintiff and defendant were both "engaged in interstate commerce." To the position thus taken, the defendant replied: (1) That the suit had been brought at common law, and, therefore, the Federal statute had no application; (2) That if this contention was not correct, then, the plaintiff having pleaded at common law and proved a case under the Federal statute, there was a fatal departure between the allegata and the probata. Finally, the plaintiff contends that if he should have formally pleaded the Federal statute, he is entitled to amend accordingly. Properly to adjudge the merits of these various contentions requires the consideration of several recent United States Supreme Court decisions and at least one of our own cases.

In Second Employers' Liability Cases, Mondou v. R.R. Co., 223 U.S. 1, the court disposed of four different appeals, and determined many general points, among others (1) That "The United States is not a foreign sovereignty as regards the several states, but is a concurrent and, within its jurisdiction a paramount sovereign"; (2) "Until Congress acted on the subject, the laws of the several states determined the liability of interstate carriers for injuries to their employees while engaged in interstate commerce, but Congress having acted, its action supersedes that of the states, so far as it covers the same subject"; (3) "When Congress, in the exertion of a power confided to it by the Constitution, adopts an act, it speaks for all the people and all the states, and thereby establishes a policy for all, and the courts of a state cannot refuse to enforce the act on the ground that it is not in harmony with the policy of the state . . . or on the grounds of inconvenience or confusion." The case we are discussing involved the same Federal statute which is now before us; and it expressly supports the constitutionality of the very provision whose protection the present plaintiff claimed in order to meet the defense here interposed. Supplementing what we have already quoted, the United States Supreme Court held that for the purposes of this act Congress had made a valid classification of railroads engaged in interstate commerce, that the provisions of the statute "supersede the laws of the State in so far as the latter cover the same field," that this piece of national legislation must be heeded by all courts, that in its enforcement by state courts the act in question is "not to be treated as a foreign statute" but as one "establishing a policy for all," and, finally, that the policy thus established is "as much the policy of Connecticut (the state from which the appeal was taken) as if the act emanated from its own legislature." Three of the suits there under review were commenced in United States Circuit Courts and one in a State Court, and in each instance the Federal statute was formally pleaded in the plaintiff's declaration; but we cite the case for the broad general principles laid down, which have since been followed and applied by the Supreme Court in reviewing other cases of like character instituted in State courts and brought at common law.

St. Louis, I.M. & S.R. Co. v. Hesterly, 228 U.S. 702, was commenced in a state court, and recovery was had by the personal representative of a deceased employee, which included an item not allowed by the Federal statute. The statute was not formally pleaded; and so far as the report shows there was nothing in the plaintiff's declaration to indicate that her decedent was engaged in interstate commerce at the time of the accident. The defendant contended that the Act of Congress controlled; but the trial court held that it did not apply, and the Supreme Court of the State subsequently decided that the Federal statute was "only supplementary and the judgment could be upheld under the State law." The United States Supreme Court reversed, citing Second Employers' Liability Cases, supra. In St. Louis, S.F. & T.R. Co. v. Seale, 229 U.S. 156, the action was by the widow and parents of a railroad employee killed in interstate service; it was brought in a state court and the Federal statute was not pleaded, nor did the plaintiff's statement of claim indicate that the deceased was engaged in interstate commerce at the time of his injury. The defendant urged that the Act of Congress applied and thereunder the personal representative of the deceased was the only one entitled to sue; but its contention was not sustained. On appeal, the United States Supreme Court reversed, "without prejudice to such rights as the personal representative of the deceased may have" under the Federal statute. In North Carolina Railroad v. Zachary, U.S. Ct. Adv. Sheets, March 1, 1914, 305, the suit was by the personal representative of a decedent killed while employed upon the defendant road. The action was instituted in a state court; the Act of Congress was not pleaded, and the plaintiff's declaration did not indicate that the deceased was engaged in interstate service. The defendant set up, "as a special defense," that "at the time plaintiff's intestate was killed he was engaged in interstate commerce, and that the liability of the defendant . . . was fixed and regulated by the Federal Employers' Liability Act." In refusing a nonsuit, the trial court held that "the action was brought under the statute of North Carolina, that the Federal Act had no application, and that the cause was triable under the statutes of the state." In reversing, the United States Supreme Court ruled that, "The Federal Act governed to the exclusion of the statutes of the State"; citing, Second Employers' Liability Cases, supra.

In Missouri, K. & T.R. Co. v. Wulf, 226 U.S. 570, the plaintiff, in her individual capacity, commenced an action in a Circuit Court of the United States to recover damages for the death of a son killed in the employ of the defendant company. The case was in the United States Court by reason of diverse citizenship; and the Federal statute was not pleaded. The defendant contended in its answer that the cause of action was "not governed by the laws of Kansas," but by the Federal Employers' Liability Act; whereupon the plaintiff asked to amend and plead the statute. The defendant objected on the ground that the period of limitation had run since the cause of action accrued; but the court allowed the amendment. The case proceeded to trial, and judgment was entered for the plaintiff. In affirming, the United States...