Kasulka v. Louisville & N. R. Co.

• Decision Date: 30 June 1925
• Docket Number: 8 Div. 727
• Citation: 105 So. 187,213 Ala. 463
• Parties: KASULKA v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

105 So. 187

213 Ala. 463

KASULKA v. LOUISVILLE & N.R. CO.

8 Div. 727

Supreme Court of Alabama

June 30, 1925

Appeal from Circuit Court, Morgan County; James E. Horton, Jr. Judge.

Action for personal injuries by John Kasulka against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

G.O Chenault and Tennis Tidwell, both of Albany, for appellant.

Jones &amp Thomas, of Montgomery, and Eyster & Eyster, of Albany, for appellee.

MILLER J.

The appellant, John Kasulka, sues the appellee, the Louisville &amp Nashville Railroad Company, to recover damages for personal injuries received by him as an employé. There are six counts in the complaint. The demurrers of the defendant were sustained by the court to all of the counts. The plaintiff declined to plead further. The court then rendered judgment that defendant go hence and recover of the plaintiff all costs for which execution may issue. This appeal is prosecuted from that judgment, and the several rulings of the court sustaining the demurrers of the defendant to each count of the complaint are the errors separately assigned and argued by appellant.

The appellant in brief states, and, we think, correctly, that counts numbered 1, 2, and 3 are drawn under the federal Employers' Liability Act (U.S.Comp.St.§§ 8657-8665), and the question presented is, Do they, or either of them, meet by the averments therein the requirements of the statute. Do they each state a good cause of action under this federal act? That part of the federal Employers' Liability Act, appearing as section 8657 (Act of April 22, 1908, c. 149, § 1) U.S. Compiled Statutes 1916, applicable to this cause reads as follows:

"Every common carrier by railroad while engaging in commerce between any of the several states or territories ***, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

The true test under these counts is, "Was the employé at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" Shanks v. Delaware, etc., R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Industrial Accident Comm. v. Davis, 259 U.S. 182, 42 S.Ct. 489, 66 L.Ed. 891.

It appears from each of the counts, 1, 2, and 3, that the plaintiff was an employé of the defendant at the time of the injury, being employed as a helper in its shops at Albany, Ala. He was engaged in work on an engine of defendant, rolling flues in the engine by means of an air motor, which air motor was defective, and by reason thereof he was injured; and this engine theretofore and thereafter was used by defendant in interstate commerce. These counts fail to allege when the engine was used by the defendant in interstate hauls, before and after it was placed in the shops for repairs. This is necessary to determine whether the engine was or was not definitely withdrawn from interstate service by defendant. Industrial Accident Comm. v. Davis, 259 U.S. 182, 42 S.Ct. 489, 66 L.Ed. 888.

These counts are before us on demurrer; and when so presented they must be construed most strongly against the plaintiff. T.C.I. & R. Co. v. Smith, 171 Ala. 251, 55 So. 170; 10 Michie's Dig. 1005, § 22(1) and (2).

The defendant had a shop in Albany, Ala., where repairs were made on engines. This engine was placed there for repairs. The flues were being rolled by means of an air motor. This means more than one flue needed repairs, and that the engine at the time was out of actual service in interstate commerce, and the work of the plaintiff was local. From the averments of these counts it appears this engine was removed from actual interstate commerce service into a repair shop of defendant for repairs, heavy repairs, a rolling of the flues therein by means of air motor located in the shops. The engine from the averments of the bill was placed in the shop for repairs, which was a new relation. Repair shops form a necessary part in interstate commerce, but they are not immediate to it. This engine appears by the counts to be separated from interstate commerce, for needed repairs, which required it to be dismantled and its flues rolled; all of which required time. This withdrew it from actual interstate service. It may have required weeks or months to make the repairs. The burden was on the plaintiff to aver facts in each count showing that this engine was temporarily "interrupted in an interstate haul to be repaired and go on," or facts of similar import, in order to make out a cause of action under the federal Employers' Liability Act. These counts should affirmatively show these repairs, being made in this shop on this engine, were so closely related to interstate transportation as to be practically a part of it. This it failed to do in each count, which rendered the counts numbered 1, 2, and 3 subject to the demurrers of the defendant. This is sustained by the opinion of the United States Supreme Court in Industrial Accident Comm. v. Davis, 259 U.S. 187, 42 S.Ct. 491, 66 L.Ed. 892, which reads in part as follows:

"The federal act gives redress only for injuries received in interstate commerce. But how determine the commerce? Commerce is movement, and the work and general repair shops of a railroad, and those employed in them, are accessories to that movement--indeed, are necessary to it but so are all attached to the railroad company--official, clerical, or mechanical. Against such a broad generalization of relation we, however, may instantly pronounce, and successively against lesser ones, until we come to the relation of the employment to the actual operation of the instrumentalities for a distinction between commerce and no commerce. In other words, we are brought to a consideration of degrees, and the test declared, that the employé, at the time of the injury, must be engaged in interstate transportation or in work so closely related to it as to be practically a part of it, in order to displace state jurisdiction and make applicable the federal act. And there is a difference in the instrumentalities. In some, the tracks, bridges, and roadbed and equipment in actual use, may be said to have definite character, and give it to those employed upon them. But equipment out of use, withdrawn for repairs, may or may not partake of that character, according to circumstances; and among the circumstances is the time taken for repairs--the duration of the withdrawal from use. Illustrations readily occur. There may be only a placement upon a sidetrack or in a roundhouse--the interruption of actual use, and the return to it, being of varying lengths of time; or there may be a removal to the repair and construction shops, a definite withdrawal from service and placement in new relations--the relations of a workshop--its employments and employés having cause in the movements that constitute commerce, but not being immediate to it.

"And it is this separation that gives character to the employment, as we have said, as being in or not in commerce. Such, we think, was the situation of the

...