Kansas City Southern Ry. Co. v. Martin

Citation262 F. 241
Decision Date06 January 1920
Docket Number3450.
PartiesKANSAS CITY SOUTHERN RY. CO. v. MARTIN.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John J King and W. L. Estes, both of Texarkana, Tex., for plaintiff in error.

J. Q Mahaffey, of Texarkana, Tex., and S. P. Jones, of Marshall Tex. (Mahaffey, Keeney & Dalby, of Texarkana, Tex., on the brief), for defendant in error.

Before WALKER, Circuit Judge, and FOSTER and GRUBB, District Judges.

WALKER Circuit Judge.

The defendant in error (who will be referred to as the plaintiff), a citizen of the state of Texas, brought this suit under the federal Employers' Liability Act (35 Stat 65; 36 Stat. 291 (Comp. St. Secs. 1010, 8657-8665)), in the District Court for the Eastern District of Texas against the plaintiff in error (which will be referred to as the defendant), a Missouri corporation, having its principal place of business in Kansas City, in that state. The question of the court's jurisdiction of the suit, which was brought in a district not that of the residence of either the plaintiff or the defendant, was duly raised; the ground on which the jurisdiction was denied being that the plaintiff was not engaged in interstate commerce when he received the injury complained of.

The plaintiff was a member of a bridge gang employed in maintaining and repairing bridges constituting part of lines of railway in use by the defendant in interstate commerce. When he was injured, he, as a member of such gang, was assisting in unloading timbers and cross-ties from a car at a point near a bridge on the defendant's line of railway over the Calcasieu river, near Lake Charles, La.; the purpose being to use the timbers and ties so placed in the reconstruction or repair of that bridge as soon as the required material could be assembled, without causing an interruption of the use of the bridge in interstate commerce. It is settled that the repair of bridges or other structures constituting part of a railway in use as an instrumentality of interstate commerce is so closely related to such commerce as to be in legal contemplation a part of it, that a railway employe engaged in such work is to be regarded as engaged in interstate commerce, and that preparatory steps taken with the purpose of furthering the actual work of repair or reconstruction constitute a part of such commerce within the meaning of the act. Pederson v. Delaware, Lackawanna & Western R.R. Co., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; Southern Railway Co. v. Puckett, 244 U.S. 571, 37 Sup.Ct. 703, 61 L.Ed. 1321, Ann. Cas. 1918B, 69; Louisville & Nashville R.R. Co., v. Parker, 242 U.S. 13, 37 Sup.Ct. 4, 61 L.Ed. 119; Philadelphia, Baltimore & Washington R.R. Co., v. Smith, 250 U.S. 101, 39 Sup.Ct. 396, 63 L.Ed. . . . .

The work in which the plaintiff was engaged when he was hurt was not more remote from the actual making of the repairs being prepared for than the work which was held to be a part of interstate commerce in the cases of Pederson v. Delaware, Lackawanna & Western R.R. Co., supra, and Philadelphia, Baltimore & Washington R.R. Co. v. Smith, supra. We are of opinion that the doing of that work is to be considered as a part of what was required to effect the repair of the bridge near which it was being done, and that the plaintiff in taking part in that work was engaged in interstate commerce. Unloading the ties at a place near enough to the bridge for them to be conveniently available for the use to which they were destined was a part of the task of getting the bridge repaired. That task was not merely anticipated, but had been entered upon when plaintiff was hurt.

The defendant set up in bar of the action a written release, alleged to have been executed by the plaintiff for a valuable consideration. The plaintiff replied to the effect that he was induced to execute the release by described fraudulent representations made to him by the defendant's agent, and that plaintiff, promptly after ascertaining the falsity of such representations, returned the check given to him when the release was executed. The court overruled a request of the defendant, made at the opening of the trial, that the issue so raised be heard and determined, on the equity side of the court, prior to the trial of the other issues involved; and the court, over the defendant's objection, submitted that issue to the jury with the other issues so submitted.

There is a conflict of decisions on the question whether such an issue, raised as it was in the instant case, is one at law and triable by a jury. The view prevailing in some courts is that the issue is not one at law, unless the fraud charged touches the execution of the questioned instrument, so as to be provable under a plea or replication of nonest factum. In the case of Union Pacific Railway Co. v. Harris, 158 U.S. 326, 15 Sup.Ct. 843, 39 L.Ed. 1003, such an issue was treated as one triable by a jury in an action at law. That was a suit for personal injuries, in which a release was pleaded as a bar to the action. The plaintiff replied that the release was obtained through misrepresentations and fraud, and that the plaintiff, while he was ill, signed the...

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