Jarvis v. Chicago, B. & Q. R. Co.

• Decision Date: 31 March 1931
• Docket Number: 29248
• Citation: 37 S.W.2d 602,327 Mo. 428
• Parties: John W. Jarvis v. Chicago, Burlington & Quincy Railroad Company, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 602

327 Mo. 428

John W. Jarvis v. Chicago, Burlington & Quincy Railroad Company, Appellant

No. 29248

Supreme Court of Missouri

March 31, 1931

Rehearing Overruled March 31, 1931.

Appeal from Circuit Court of City of St. Louis; Hon. Henry A Hamilton, Judge.

Reversed.

J. C James and Douglas W. Robert for appellant.

(1) Even though plaintiff alleged that he was employed in interstate commerce, the accident happening in Illinois, the defendant had the right to plead as a defense and to defend on the ground that plaintiff was not so employed, and was governed by the law of Illinois and could not maintain this action in this State. Sec. 1233, R. S. 1919. (a) The mere fact that plaintiff alleged he was employed in interstate commerce would not prevent his amendment by striking out such allegation and proceeding at common law, or the court or jury ignoring the allegation and a verdict being rendered under common law, and, unless the Compensation Act of Illinois had been pleaded it could not urge it as a defense. Wabash Railroad v. Hayes, 234 U.S. 86; M. K. & T. Railroad v. Wulf, 226 U.S. 570; D. L. & W. Railroad v. Yurkonis, 220 F. 429; Sullivan v. Railroad, 12 S.W.2d 735; Lopez v. Hines, 254 S.W. 57; Pipes v. Railroad, 267 Mo. 385; Hilderbrand v. Railroad, 298 S.W. 1069; Azar v. Railroad, 251 S.W. 453; C. R. I. & P. Railroad v. Cosio, 182 S.W. 83; Vandalia Railroad Co. v. Stringer, 182 Ind. 676; St. Louis, I. M. & S. Railroad v. Coke, 118 Ark. 49. (b) Indeed at the time this case was tried it was incumbent upon the defendant to plead and prove the foreign law. It could not have the benefit of it unless it did so. Crary v. Standard Inv. Co., 313 Mo. 448; Lee v. Ry. Co., 195 Mo. 400. (c) Plaintiff, being governed by the Workmen's Compensation Act of Illinois, was not entitled to maintain any action in this State. Sec. 1162, R. S. 1919; Ch. 48, Sec. 143, p. 1268, Smith Hurd, Ill. Stat. 1925; Moseley v. Gas Co., 313 Mo. 225; Osagera v. Schaff, 293 Mo. 333; Mitchell v. Smelting Co., 202 Mo.App. 251. (2) Plaintiff was not employed, at the time he was injured, in interstate commerce, and was for this reason governed by the Workmen's Compensation Act of Illinois, and not entitled to recover under the Federal Employers' Liability Act, and it was error to instruct the jury that he was. Poindexter v. Railroad Co., 4 S.W.2d 1065 (Certiorari denied, 73 Law Ed. 31); Mayor v. Ry. Co., 26 F.2d 907 (Certiorari denied, 73 Law Ed. 32); Grigsby v. Ry. Co., 3 F.2d 988 (Certiorari denied, 268 U.S. 704) Erie Railroad v. Welsh, 242 U.S. 303; Ill. Cent. Ry. v. Peery, 242 U.S. 292; C. B. & Q. Railroad Co. v. Harrington, 241 U.S. 177; Ill. Cent. Ry. Co. v. Behrens, 233 U.S. 473; Shauberger v. Railroad Co., 25 F.2d 297; Penn. Railroad Co. v. Knox, 218 F. 768; C. & E. Railroad Co. v. Feightner, 114 N.E. 659; L. & N. Railroad Co. v. Strange, 156 Ky. 439; Gulf & S. Railroad Co. v. Curtis, 111 So. 587.

C. O. Inman and W. H. Douglass for respondent.

(1) The Workmen's Compensation Act pleaded by defendant was properly stricken out of its answer, and its admission in evidence properly denied, for it constituted no defense to plaintiff's action, because (a) Plaintiff predicated his right to recover on the Federal Employer's Liability Act and in order to recover, he must prove the allegation in his petition that he was employed in interstate commerce, for this act is both "inclusive and exclusive." Carter v. Railroad, 307 Mo. 595; Ches. & Ohio Railroad Co. v. Stapleton, 278 U.S. 585. (b) "The law in this State is well settled that the plaintiff must recover, if at all, upon the cause of action pleaded in his petition" (219 Mo. 552). Plaintiff pleaded he was employed in interstate commerce and, if so, came under the act and must establish that fact. Cases above cited; Mathewson v. Railroad, 219 Mo. 542. (c) If the "evidence discloses that the plaintiff was not engaged in interstate commerce at the time he was injured . . . it ends the case on the cause of action sued on, for all time." Hence, the Compensation Act would not show that plaintiff was or was not employed in interstate commerce. Lopez v. Hines, 254 S.W. 41; Pipes v. Railroad, 267 Mo. 385. (2) Plaintiff was employed in interstate commerce for he was called for duty at nine o'clock, and when he reported was given a specific order as to what would constitute his duty. It was: "Go to Ziegler and get a train of coal for the north." It is admitted this train contained interstate commerce cars, and as the purpose of the order was to get an interstate train at Ziegler, then the purpose of the movement determines the character of the employment irrespective of any incidental movement. L. & N. Railroad Co. v. Parker, 242 U.S. 13; N. Y. C., etc., Railroad Co. v. Carr, 238 U.S. 260, 263; Railroad v. Halverstodt, 16 F.2d 995; O'Donnell v. Director Gen., 273 Pa. 375; Koons v. Ry. Co., 271 Pa. 468; McDonald v. Railroad, 279 Pa. 26; Wabash Ry. Co. v. Whitcomb, 154 N.E. 885. (3) The train which plaintiff and his crew were ordered to go to Ziegler and get was made up when the crew reached Ziegler and it was made up from the 127 coal cars in defendant's yard that were billed before plaintiff and his crew received this order. The cars were all billed at seven o'clock and the order was not given until nine o'clock. The order to go get this train, under these circumstances, constituted interstate commerce. Phila. & Reading Railroad v. Hancock, 253 U.S. 284; United States v. Union Stock Yards, 226 U.S. 286, 304; Christie v. Railroad, 195 Mo.App. 332 (Certiorari denied, 248 U.S. 656). (4) The admission of the defendant that the cars in this train contained interstate commerce cars was competent, as this admission was made in lieu of the production of records asked for. It was competent to determine whether this was or was not an interstate commerce train or movement.

OPINION

Atwood, J.

This is an appeal from a judgment rendered in favor of plaintiff, John W. Jarvis, and against defendant Chicago, Burlington & Quincy Railroad Company, for $ 20,000, on account of injuries alleged to have been sustained by Jarvis at Christopher, Illinois, while employed by defendant in interstate commerce, which injuries resulted in amputation of plaintiff's right leg about the knee.

The petition alleged that at the time plaintiff was injured he was employed by defendant as a flagman or rear switchman and "was riding on the rear end of a cut of cars in the performance of his duty when said cars were derailed on account of running into a derail switch which had not been thrown," and that the injuries sustained "were caused in whole or in part by the negligence of the defendant, its officers, agents and employees by reason of the defect and insufficiency due to its negligence in the operation of its cars and engines, and the defect in its appliances, machinery, track, road-bed and equipment and in handling the cars at the time." Defendant's answer contained a general denial; a plea that neither plaintiff nor defendant was engaged in interstate commerce at the time plaintiff was injured and that plaintiff's injuries were caused by his own negligence; and the answer further pleaded the Workmen's Compensation Act of the State of Illinois as a defense. Plaintiff's reply was a general denial.

Before this appeal was heard respondent filed an additional abstract and record, as he had a right to do under Section 1479, Revised Statutes 1919. [Pullis v. Somerville, 218 Mo. 624, 634.] Appellant filed objections thereto in writing, and prayed that "an order issue to the Clerk of the Circuit Court of the City of St. Louis, commanding him to send to this court the bill of exceptions in this cause, or a certified copy thereof, as provided by Section 1479, Revised Statutes 1919." The section cited authorizes such an order only when it appears that part of the record is in dispute. The abstract filed by respondent is designated on the cover page as "Respondent's Additional Abstract and Record," and purports to present in full the testimony of certain witnesses as the same appears in defendant's term bill of exceptions. An examination of appellant's abstract discloses that it presents in full only parts of the examination and testimony of these witnesses and only purports to give the substance of the remainder. Appellant's objections cover a wide range and dwell largely upon matters alleged as appearing in defendant's bill of exceptions and not included in respondent's additional abstract. Of such omissions, if any there be, appellant is in no position to complain. Upon it was imposed the duty of filing a sufficient abstract. Appellant does not assert that any of the matters presented in respondent's additional abstract do not appear in its bill of exceptions. The matters so presented by respondent are not controverted, disputed or put in issue by appellant's objections. Therefore, the objections are overruled and respondent's additional abstract is accepted as a correct statement of the matters contained therein. [Eliot v. Railroad, 204 Mo. 1, 12, 102 S.W. 532; Woods v. St. Louis & S. F. R. Co., 187 S.W. 11, 14; Hayes et al. v. McLaughlin, 217 S.W. 262, 264.]

Before filing his reply plaintiff filed motion in the circuit court to strike out parts of defendant's answer setting up the Workmen's Compensation Act of the State of Illinois as a defense. This motion was sustained and appellant assigns the ruling as reversible error. Appellant abstracts the grounds of this motion as follows:

"For grounds of said motion the plaintiff says that said matter alleged in defendant's answer as above set forth does not constitute a defense to plaintiff's action.

"That plaintiff has predicated his right to recover on the ground that he was employed in interstate...