Midwest Nat. Bank & Trust Co. v. Davis

• Decision Date: 08 July 1921
• Docket Number: No. 21753.,21753.
• Citation: 288 Mo. 563,233 S.W. 406
• Court: Missouri Supreme Court
• Parties: MIDWEST NAT. BANK & TRUST CO. v. DAVIS, Director General of Railroads.

233 S.W. 406

288 Mo. 563

MIDWEST NAT. BANK & TRUST CO. v. DAVIS, Director General of Railroads.

No. 21753.

Supreme Court of Missouri, in Banc.

July 8, 1921.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by the Midwest National Bank & Trust Company, administrator of the estate of Ralph Appleby, deceased, against James C. Davis, Director General of Railroads, etc. Judgment for plaintiff, and defendant appeals. Affirmed on condition plaintiff enter voluntary remittitur; otherwise reversed and remanded.

Edward J. White, of St. Louis, and Thos. Hackney and Leslie A. Welch, both of Kansas City, for appellant.

Brewster, Kelly, Brewster & Buchholz and Kimbrell & O'Donnell, all of Kansas City, for respondent.

HIGBEE, P. J.

This is an action brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) on account of the death of Ralph Appleby, a switchman. Suit was instituted by the widow, Beulah Appleby, as administratrix of the estate, for the benefit of herself and her three infant children, against William G. McAdoo, Director General of Railroads. On his resignation Walker D. Hines, his successor in office, was substituted as defendant. After the appeal was taken in this cause, John Barton Payne, successor in office to Walker D. Hines, was substituted as defendant in his stead. Prior to the hearing, James C. Davis, his successor in office, was substituted as defendant in his stead.

At the time of his death deceased was 28 years of age. He was sober, industrious, and in good health. He was earning $150 per month and turned his checks over to his wife. He left as his surviving dependents his widow, 24 years old, and three children, aged 5, 3, and 1½ years, respectively.

The defendant's answer pleaded the federal Compensation Act of September 7, 1916, as a bar to the action, denied all the allegations of the petition, and averred that the deceased came to his death by his own negligence. Since judgment was rendered in the circuit court, Beulah Appleby has resigned as administratrix, and the Midwest National Bank & Trust Company has been duly appointed in her place and substituted as plaintiff in her stead.

The deceased met his death at about 3:05 o'clock on the morning of October 31, 1918. He was working as a switchman in the employ of the Director General in the yards of the Missouri Pacific Railway Company in Kansas City, Mo. He had reported for duty at midnight, and so had been working about three hours at the time of his death. The crew had been performing various switching operations in which the cars were "kicked" onto various tracks. They were making up a train to be delivered to the Kansas City Southern Railway, whose engine was to come over and get it. At about 1:30 a. m. the engine used by the switching crew began and continued to act very badly. Whenever the brakes were applied the engine would stop so suddenly and violently that it threw men out of bed in the cabooses that were being switched.

Mr. Dary, foreman of the switching crew, testified:

"Q. Just describe to this jury what happened —the action of the engine. A. Well, any time I would stop there would be a severe jerk or the engine would jerk the cars so hard when we were moving that it would jerk the men out of bed in the cabooses. It jerked them out of bed and they complained.

"Q. Just tell the jury what was the difference between the ordinary jerk and the jerking on that night. A. Well, in stopping, when the engineer would apply the air, it would give sudden jerks to the cars, and then it would slack them and then it would jerk them back again. It would cause damage to the cars. It pulled out a drawbar in stopping. We had on between 20 and 30 cars.

"Q. Where was the car on which Mr. Appleby was riding at the time you gave the stop or kick signal? A. Just opposite me.

"Q. When you gave the signal, you may say what, if anything, happened. A. When I gave the signal they just stopped right now. I mean the whole drag stopped with a violent jerk and then lunged ahead again. It stopped with an awful severe and sudden jerk.

"Q. What happened to Appleby? A. It jerked him underneath with his left leg across the rail, passing over him, right across his hip. I never worked around an engine that stopped a drag as that did, as this engine had been jerking the cars around.

"Q. Did you ever see anything like this engine? A. No, sir; I did not.

"Q. State whether in your opinion it would have been possible for a man to have stayed on the car jerked as this was jerked at this time. A. Well, he would have to have been expecting a jerk like that and would have had to be ready for it.

"Q. It was so violent and sudden? A. Yes, sir.

"Q. In following the engine, what car would he ordinarily be riding? A. On the car he was cutting off.

"Q. When that car was cut off, if the engine made a sudden jerk, would that car receive a sudden jerk? A. No, sir.

"Q. He had been doing that all that evening before this drag, kicking it into track No. 10? A. Yes, sir."

Mr. Boone, one of the crew, testified he heard Mr. Dary tell the engineer he was handling the engine "awfully rough." The engineer said he could not help it; the air was bad. They ordered another engine about an hour and a half before Appleby was killed. It would require about two hours to get steam up in the other engine, and they continued to use the defective engine in the switching operations. It was necessary to get the car from which the drawbar had been pulled out of the drag to make it ready for delivery to the Kansas City Southern Railway, and it was while this was being attempted that Appleby was killed. In this transfer there were several cars of merchandise billed to points in other states. The car on which Appleby was riding at the time he met his death was a tank car of oil destined to Oil City, La. Deceased was doing his work in the usual and customary manner, and was in the act of pulling the lever to cut off the "bad order" car when he was thrown from the tank car and met his death.

Defendant stood on his demurrer to the plaintiff's evidence. The jury rendered a verdict for the plaintiff in the sum of $32,000, and judgment was entered accordingly, from which the defendant appealed.

1. Appellant contends that the federal Compensation Act of September 7, 1916 (U. S. Comp. St. §§ 8932a-8932uu), governs the compensation payable by the federal government to the widow and children of the deceased employé. Section 1 of the act reads:

"The United States will pay compensation as hereinafter specified for the disability or death of an employé resulting from a personal injury sustained while in the performance of his duty," etc. Section 8932a, U. S. Comp. St.

Section 10 of the Government Control Act of March 21, 1918 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115¾j), provides:

"That carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any act applicable to such federal control or with the order of the President. Actions at law and suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any such action at law or suit in equity against the carrier no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government."

From the foregoing act, as well as from Order No. 50 of the Director General, it is clear that actions of this character and the measure of damages are governed by the laws in force prior to the time the federal government assumed control of the railroads. The Supreme Court of the United States has affirmed many judgments against the Director General of Railroads in actions of this character. This identical question was decided against appellant's contention in Dahn v. McAdoo, Director General (D. C.) 256 Fed. 549. Syllabi 1 and 2 read:

"1. Under Act Aug. 29, 1916, authorizing President to take over transportation systems, President's proclamation of December 26, 1917, delegating control to Director General of Railroads, Federal Control Act, § 10 (Comp. St. 1918, § 3115¾j), and General Order No. 50 of Director General, a personal injury action commenced subsequent to General Order No. 50 on a cause of action occurring during federal operation may be maintained against Director General of Railroads.

"2. The federal Employés' Compensation Act (Comp. St. §§ 8932a-8932uu) does not provide an exclusive remedy, so as to preclude a railway mail clerk from maintaining a personal injury negligence action against the Director General of Railroads."

2. Appellant's second contention is that the petition does not allege that deceased was engaged in interstate commerce. We quote the pertinent averments:

"The defendant, William G. McAdoo, Director General of Railroads, was as such, at all times herein mentioned, engaged in the business of operating the properties of the Missouri Pacific Railway, and said Director General was operating all of said properties in carrying on commerce by railroad between the state of Missouri and the various other states of the United States, and so was engaged in interstate commerce.

"Plaintiff further says that Ralph Appleby, at the time of his injuries, was in the employ of the defendant, and as such employé was engaged in the business of switching cars for the defendant and engaged in the business of assisting defendant in carrying on said interstate commerce."

As said in Thornton's Federal Employers' Liability Act (3d Ed.) § 201:

"To recover under the statute it must be shown by the pleading that the employé-plaintiff was at the time of his injury engaged in interstate commerce, and also that the defendant was a common carrier by railroad at the same time, in the transaction wherein the...