Maxie v. Gulf, M. & O. R. Co.

• Decision Date: 14 March 1949
• Docket Number: 40768
• Citation: 219 S.W.2d 322,358 Mo. 1100
• Parties: James B. Maxie, Respondent, v. Gulf, Mobile & Ohio Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

219 S.W.2d 322

358 Mo. 1100

James B. Maxie, Respondent, v. Gulf, Mobile & Ohio Railroad Company, a Corporation, Appellant

No. 40768

Supreme Court of Missouri

March 14, 1949

Motion for Rehearing or to Transfer to Banc Overruled April 11 1949.

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Affirmed.

Wayne Ely and Robert C. Ely for appellant D.S. Wright of counsel.

(1) Plaintiff alleged that his case was governed by the Federal Employers' Liability Act and his case was tried on that theory. Therefore, his case is not complete unless he proves that he was engaged in interstate commerce. Martin v. St. Louis-S.F. Ry. Co., 250 S.W. 1023; Avance v. Thompson, 55 N.E.2d 57, certiorari denied 323 U.S. 753, 89 L.Ed. 603; Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq. (2) The opinion of this court on the first appeal of this case should not be adhered to, because the court erred in the principles of law declared and inadvertently overlooked material testimony of plaintiff in the nature of admissions that he may have bumped into the doors and caused them to fall. Maxie v. G.M. & O. Rd. Co., 202 S.W.2d 904; Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.; Dunn v. Alton R. Co., 104 S.W.2d 311; Hogan v. Kansas City Pub. Serv. Co., 19 S.W.2d 707; Bird v. Sellers, 26 S.W. 667; McNatt v. Wabash Ry. Co., 108 S.W.2d 33; Davidson v. St. Louis-S.F. Ry. Co., 256 S.W. 169; Mangold v. Bacon, 141 S.W. 650. (3) On the first appeal of this case the court inadvertently misinterpreted the 1939 amendment to the Employers' Liability Act. The amendment was added to cover employees who constantly shift from interstate service to intrastate service. Shoenfelt v. Pennsylvania R. Co., 69 F.Supp. 728; Taylor v. Lumaghi Coal Co., 181 S.W.2d 536; Report of the Senate Committee on the Judiciary on 1939 amendment to Employers' Liability Act. (4) It is the law that when cars are placed in repair shops for substantial repairs, they are removed from interstate commerce and employees working on them are not engaged in interstate commerce. Industrial Accident Comm. of the State of California v. Davis, 66 L.Ed. 888; Minneapolis & St. Louis Rd. Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358, 359, Ann Cas. 1918B 54; Toussaint v. Cleveland, C.C. & St. L.Ry. Co., 104 S.W.2d 263; Oglesby v. St. Louis-S.F. Ry. Co., 1 S.W.2d 172; Shanks v. Delaware, Lackawanna & Western Rd. Co., 60 L.Ed. 436; Chicago & Northwestern Ry. Co. v. Bolle, 284 U.S. 74, 76 L.Ed. 173; Sullivan v. New York, N.H. & H.R. Co., 74 F.2d 725; New York, N.H. & H.R. Co. v. Bezue, 284 U.S. 415, 76 L.Ed. 370. (5) Plaintiff's evidence shows that all cars on which he worked had been removed from interstate commerce and were dead in the yards. Industrial Accident Commission of the State of California v. Davis, 66 L.Ed. 888; Minneapolis & St. Louis Rd. Co. v. Winters, 61 L.Ed. 358; Toussaint v. Cleveland, C.C. & St. L. Ry. Co., 104 S.W.2d 263; P.F. Collier & Son Co. v. Hartfiel, 72 F.2d 625; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819. (6) By the acceptance of Instruction 1 and refusal of Instruction C, the court held that as a matter of law plaintiff was engaged in interstate commerce. By so ruling the court completely ignored the evidence adduced on behalf of defendant which, if accepted as true, would have required a finding that plaintiff was not engaged in interstate commerce. Such error can be cured only by remanding for a new trial. Industrial Accident Comm. of the State of California v. Davis, supra; Minneapolis & St. Louis Railroad Co. v. Winters, supra; Toussaint v. Cleveland, C.C. & St. L. Ry. Co., supra; Oglesby v. St. Louis-San F. Ry. Co., supra; Shanks v. Delaware, Lackawanna & Western Railroad Co., supra; Chicago & Northwestern Ry. Co. v. Bolle, supra; Sullivan v. New York, N.H. & H.R. Co., supra; New York, N.H. & H.R. Co. v. Bezue, supra. (7) Plaintiff's testimony gives rise to a reasonable inference that the doors may have been caused to fall by being bumped by him. Therefore, plaintiff has not ruled out all hypotheses of negligence other than defendant's negligence, and he cannot take advantage of the doctrine of res ipsa loquitur. Maxie v. Gulf, Mobile & Ohio R.R. Co., 202 S.W.2d 904; Grindstaff v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Removich v. Bambrick Brothers Construction Co., 173 S.W. 686; Cothron v. Cudahy Packing Co., 73 S.W. 279; McGrath v. St. Louis Transit Co., 94 S.W. 872; Dunn v. Alton R. Co., 104 S.W.2d 311; Hogan v. Kansas City Pub. Serv. Co., 19 S.W.2d 707; Bird v. Sellers, 26 S.W. 667; McNatt v. Wabash Ry. Co., 108 S.W.2d 33; McNatt v. St. Louis-S.F. Ry. Co., 256 S.W. 169; Mangold v. Bacon, 141 S.W. 650. (8) Plaintiff did no more than prove the happening of the accident and his resultant injury. Without additional evidence of the attendant facts and circumstances, plaintiff cannot rely upon an inference of negligence under the doctrine of res ipsa loquitur. Charlton v. Lovelace, 173 S.W.2d 13; Kramer v. Mills Lumber Co., 24 F.2d 313; Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 277, 45 L.Ed. 361.

Sol Andrews, Wm. E. Gallagher and William H. Allen for respondent.

(1) On the former appeal of this case this court held that, as a matter of law plaintiff was engaged in interstate commerce within the meaning of the Employers' Liability Act as amended in 1939, and that the evidence adduced made a case under the res ipsa loquitur rule. Maxie v. Gulf, Mobile & Ohio R. Co., 354 Mo. 633, 202 S.W.2d 904. On both of those matters the evidence on this appeal is the same in all material respects as that before this court on the former appeal. Nor is there any ground to claim that with respect to such former rulings this court acted under any mistake of fact or did not do justice to the parties. Consequently, such former rulings constitute the settled law of this case as to said matters. Yakubinis v. Missouri-K.-T.R. Co., 345 Mo. 943, 137 S.W.2d 504; Swain v. Anders, 349 Mo 963, 163 S.W.2d 1045; Crossno v. Terminal Rd. Assn., 333 Mo. 733, 62 S.W.2d 1092; Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105. (2) The evidence adduced on the second appeal conclusively showed, as it did on the former appeal, that plaintiff's work as defendant's employee consisted of the making of repairs to freight cars, many of which were used in interstate commerce, and that at the time of his injury he was engaged in helping repair car 4656, which came to these yards after an interstate journey and went out from the yards on an interstate trip. Consequently a part of plaintiff's duties were the furtherance of interstate commerce and directly affected such commerce, and hence, by the express terms of the Act as amended in 1939, plaintiff must be considered as having been employed in such commerce and entitled to the benefits of the Act. Federal Employers' Liability Act of April 22, 1908, c. 149, Sec. 1, 35 Stat. 65, 45 U.S.C.A., Sec. 51, as amended in 1939, Act of August 11, 1939, c. 685, Sec. 1, 53 Stat. 1404, 45 U.S.C.A., Sec. 51; Maxie v. Gulf, Mobile & Ohio R. Co., 356 Mo. 633, 202 S.W.2d 904; Shelton v. Thomson, 148 F.2d 1; Edwards v. B. & O.R. Co., 131 F.2d 366; Ermin v. Pennsylvania Ry. Co., 36 F.Supp. 936; Great Northern R. Co. v. Industrial Commission, 14 N.W.2d 152; Ford v. L. & N.R. Co., 196 S.W.2d 163; Taylor v. Lumaghi Coal Co., 352 Mo. 212, 181 S.W.2d 536; Prader v. Pennsylvania R. Co., 49 N.E.2d 387; Lewis v. Industrial Accident Commission, 19 Cal.2d 284, 120 P.2d 886. (3) Under the Federal Employers' Liability Act as amended on August 11, 1939, it mattered not in the least how long car 4656, in the repairing of which plaintiff was engaged at the time of his injury, was in the repair shop on that occasion, or whether the repairs thereto or to any other car in this yard were "light repairs" or "heavy repairs." Since it appeared without dispute that car 4656 had been used in interstate commerce immediately prior to being put into the shop for repairs and was at once sent out in interstate commerce when repaired, and that a great many other cars repaired in these yards by plaintiff and his fellow workmen were interstate cars, that is, cars that came in from interstate trips and went out on interstate trips, obviously a part of plaintiff's duties as defendant's employee was the furtherance of interstate commerce which, under the Act as amended, entitled him to the benefits thereof. Maxie v. Gulf, Mobile & Ohio R. Co., 356 Mo. 633, 202 S.W.2d 904; Shelton v. Thomson, 148 F.2d 1; Edwards v. B. & O.R. Co., 131 F.2d 366; Prader v. Pennsylvania R. Co., 59 N.E.2d 387; And other cases cited under Point (2), supra. (4) The evidence showed as a matter of law that a part of plaintiff's duties were in the furtherance of interstate commerce, as this court held on the former appeal. Maxie v. Gulf, Mobile & Ohio R. Co., 356 Mo. 633, 205 S.W.2d 904; Antonio v. Pennsylvania R. Co., 155 Pa. Sup. 277, 38 A.2d 705; Avance v. Thompson, 387 Ill. 77, 55 N.E.2d 57; Wolff, Admx., v. Campbell, 110 Mo. 114, 119 S.W. 622; Central States Savings & Loan Assn. v. U.S. Fidelity & Guaranty Co., 334 Mo. 580, 66 S.W.2d 550. (5) At the first trial defendant's counsel admitted that car 4656 was the car on which plaintiff was working at the time of his injury. At this second trial defendant's counsel said he couldn't admit that, but that he was not disputing it, and that there was no question about it. It matters not what may be the effect of this, for the reason that the admission of defendant's counsel in open court, at the first trial, constituting a judicial admission, was not limited to that trial but remains binding upon the defendant throughout the entire litigation. Pennington v. K.C. Rys. Co., 284...