Miller v. Terminal Railroad Assn., No. 37976.

CourtMissouri Supreme Court
Writing for the CourtBradley
Citation163 S.W.2d 1034
PartiesJULIA C. MILLER, Administratrix of the estate of ERNEST F. MILLER, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
Docket NumberNo. 37976.
Decision Date01 July 1942
163 S.W.2d 1034
JULIA C. MILLER, Administratrix of the estate of ERNEST F. MILLER,
No. 37976.
Supreme Court of Missouri.
Division One, July 1, 1942.
Rehearing Denied, July 28, 1942.

Appeal from Circuit Court of City of St. Louis.Hon. Harry F. Russell, Judge.

AFFIRMED (subject to remittitur).

Carlton S. Hadley, Walter N. Davis and Arnot L. Sheppard for appellant.

(1) Respondent's petition and evidence are based upon the theory that this case is one of res ipsa loquitur. This theory is not applicable to our facts. (a) First: There is here involved a collision between two trains moving over appellant's track, only one of which was under the control, inclusive or exclusive, of appellant; whereas one of the cardinal requisites for the application of that doctrine is that the exclusive control of the instrumentality producing injury must be in the person charged with negligence. Scott v. Louden Dock Co., 3 Hurl. & C. 596; 45 C.J., sec. 768, p. 1193; 38 Am. Jur., sec. 300, pp. 996, 997; 9 Wigmore on Evidence (3 Ed.), sec. 2509, p. 380; San Juan Light & T. Co. v. Requena, 224 U.S. 89, 56 L. Ed. 680; Louisville & Nashville R. Co. v. Chatters, 279 U.S. 320, 73 L. Ed. 711; Rintoul v. N.Y.C. & H.R. Co., 17 Fed. 905; Delaware Dredging Co. v. Graham, 43 Fed. (2d) 852; Cruse v. Sabine Transportation Co., 88 Fed. (2d) 298; Bonner v. Texas Co., 89 Fed. (2d) 291; United States v. Porter Bros. & Biffle, 95 Fed. (2d) 694, certiorari denied, 305 U.S. 601, 83 L. Ed. 382; Brooks v. Hill-Shaw Co., 117 Fed. (2d) 682; The Mercier, 5 Fed. Supp. 511; The President Wilson, 5 Fed. Supp. 684; Chicago City Ry. Co. v. Rood, 163 Ill. 477, 25 N.E. 238; Chicago Union Traction Co. v. Giese, 229 Ill. 260; Barnes v. Danville Street Ry. Co., 235 Ill. 566; Feldman v. Chicago Rys. Co., 289 Ill. 25; Ballenbach v. Bloomenthal, 341 Ill. 539; Lazer v. Chicago City Ry. Co., 152 Ill. App. 319, 320; Wojeznska v. Chicago Consolidated Co., 156 Ill. App. 587; Letush v. N.Y.C.R. Co., 267 Ill. App. 526; Wilson v. E. St. Louis & Interurban Water Co., 295 Ill. App. 603, 15 N.E. (2d) 599; Todd v. S.S. Kresge, 303 Ill. App. 89, 24 N.E. (2d) 899; Halowatsky v. Central Greyhound Lines, Inc., 311 Ill. App. 127, 35 N.E. (2d) 541; State ex rel. Brancato v. Trimble, 332 Mo. 318, 18 S.W. (2d) 4. The United States District Court for the Eastern District of Missouri, in an opinion delivered November 18, 1941, held that a petition based upon res ipsa loquitur which failed to plead defendant's control of the instrumentality alleged to have caused the injury was fatally defective. Leeper v. Natl. Lead Co., 42 Fed. Supp. 121, 122. All of the evidence shows that the proximate cause of the death of respondent's decedent was the negligence of the engineer of the Gulf, Mobile and Ohio train over the running of which appellant had no control at the time of the casualty. Both decedent and appellant were engaged in interstate transportation at the time the former was killed. Therefore this case is governed by the Federal Employers' Liability Act, and is prosecuted under it. If recovery may be had under the petition here, it must be under that act and only under that act. But there can be no recovery by virtue of that act unless (1) the relation of employee and employer exists between plaintiff and defendant, respectively; and, (2) defendant was guilty of negligence proximately producing the injury. (a) The relationship is conceded, as between respondent's decedent and appellant; but not as between him and the Gulf, Mobile and Ohio Railroad Company. The undisputed evidence shows appellant was not guilty of negligence proximately causing decedent's death, and that the Gulf, Mobile and Ohio Railroad Company was. Therefore, there can be no recovery here under the Federal Employers' Liability Act. Robinson v. B. & O.R. Co., 237 U.S. 84, 59 L. Ed. 849; C. & A.R. Co. v. Wagner, 239 U.S. 452, 60 L. Ed. 379; Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 64 L. Ed. 670; Schleappe v. Terminal Railroad Assn., 98 S.W. (2d) 616. Any possible negligence on appellant's part must have been based upon decedent's breach of duty, thereby precluding appellant's liability therefore to respondent. Atlantic Coast Line v. Driggers, 279 U.S. 787, 73 L. Ed. 957; Willis v. P.R. Co., 122 Fed. (2d) 248; Helton v. Thompson, 36 N.E. (2d) 267. (2) The local Illinois law is not applicable. The rights of both appellant and respondent must be determined by the Federal Employers' Liability Act, and their "rights and obligations depend upon it and applicable principles of common law as interpreted and applied in Federal Courts." New Orleans & N.E.R. Co. v. Harris, 247 U.S. 367, 62 L. Ed. 1167; Central Vermont R. Co. v. White, 238 U.S. 507, 35 Sup. Ct. 200, 59 L. Ed. 1433; Southern R. Co. v. Gray, 241 U.S. 340, 36 Sup. Ct. 558, 60 L. Ed. 1030. The rulings of the United States Supreme Court are not so clear as they might be. North Carolina Railroad Company v. Zachary, 232 U.S. 248, 58 L. Ed. 591, 34 S. Ct. 305, seems to indicate that the question may be controlled by a local law. However, the later decisions of that court seem to hold to the contrary, at least on the question of employer and employee relationship. Robinson v. B. & O.R. Co., 237 U.S. 84, 59 L. Ed. 849; C. & A.R. Co. v. Wagner, 239 U.S. 452, 60 L. Ed. 379; Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 64 L. Ed. 670. Assuming, without conceding, that the Federal rule makes the lessor liable for the acts of the lessee, it may not be invoked here. The reason assigned for the creation of the rule is that the absence of such a principle would enable the lessor to shirk its franchise responsibilities to the public by placing its property under the control of irresponsible third persons. East Line R. Co. v. Culbertson, 10 S.W. 706, 3 L.R.A. 567, 13 Am. St. Rep. 807; Williard v. Spartanburg U. & C.R. Co., 124 Fed. 796; Hukill v. Maysville & B.S.R. Co., 72 Fed. 745; Hulen v. Wheelock, 300 S.W. 479, 485. The reason upon which rests the rule making the lessor liable for the lessee's acts no longer prevails, and the rule itself becomes inapplicable. Georgia Railroad & Banking Co. v. Friddell, 79 Ga. 489, 11 Am. St. Rep. 447, 7 S.E. 214. Moreover, if we assume liability of the lessor railroad for the acts of the lessee railroad, the specific theory underlying the remedy to enforce such is said to arise because the latter is in the eyes of the law the agent of the former, because it is said the duty to perform the franchise obligations rests upon the lessor and where it does not individually fulfill those obligations, but permits the lessee to do so for it, the lessor thereby makes the lessee its agent in the discharge of such franchise responsibilities. 51 C.J., sec. 1137, pp. 1090, 1091. (3) This theory is inapplicable here because the United States Supreme Court has made it a requisite to appellant's continued existence as a terminal company that it shall act as the impartial agent of each "line-haul" railroad which shall use its facilities. United States v. Terminal Railroad Assn., 224 U.S. 383, 56 L. Ed. 810; United States v. Terminal Railroad Assn., 236 U.S. 194, 59 L. Ed. 535; State ex inf. v. Terminal Railroad Assn., 182 Mo. 284. (4) Under these decisions last above cited, appellant has no choice as to who shall use its terminal facilities; it must by law permit any "line-haul" railroad which chooses so to do to use its facilities on exactly the same terms as does every other "line-haul" railroad. Its permission to use, therefore, is involuntary rather than voluntary, and, consequently, it is without the lessor-lessee rule of liability. Smith v. Philadelphia, Baltimore & Washington R. Co., 46 App. (D.C.) 275. (5) The verdict of the jury for $55,000 was grossly excessive, and the judgment is still grossly excessive even after a remittitur of $25,000. Hancock v. K.C. Terminal Ry. Co., 146 S.W. (2d) 627, and cases cited; Sibert v. Litchfield & M. Ry. Co., 189 S.W. (2d) 612.

Mark D. Eagleton, James A. Waechter and Roberts P. Elam for respondent.

(1) Defendant's counsel having in his argument to the jury admitted defendant's liability, limited the issues to the amount of plaintiff's damages, and sought only to minimize the amount of the verdict, defendant cannot now change its theory and contend upon this appeal for error relating to the issue of its liability. Hampe v. Versen, 224 Mo. App. 1144, 32 S.W. (2d) 793; Emerson v. Mound City, 26 S.W. (2d) 766; Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028; Matousek v. Bohemian R.C.F.C. Union, 192 Mo. 588, 91 S.W. 539; Wild v. Pitcairn, 149 S.W. (2d) 800. (2) Where the facts of a case are otherwise such as to make the doctrine of res ipsa loquitur applicable, that doctrine is fully applicable in cases under the Federal Employers' Liability Act, such as is the case at bar. Williams v. St. Louis-S.F.R. Co., 337 Mo. 667, 85 S.W. (2d) 624; Noce v. St. Louis-S.F.R. Co., 337 Mo. 689, 85 S.W. (2d) 637; Benner v. Terminal Railroad Assn., 156 S.W. (2d) 657, certiorari denied, 86 L. Ed. 668; Sibert v. Litchfield & M.R. Co., 159 S.W. (2d) 612. (3) Where the evidence establishes, as it did in this case, that a collision between two trains upon the defendant railway company's tracks was the cause of plaintiff's injury, those facts alone ordinarily bring the case within the doctrine of res ipsa loquitur and establish a prima facie case of defendant's negligence. McGoffin v. Missouri Pacific R. Co., 102 Mo. 540, 15 S.W. 76; Magrane v. St. Louis & S.R. Co., 193 Mo. 119, 81 S.W. 1158; Chlanda v. St. Louis Transit Co., 213 Mo. 244, 112 S.W. 249; Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479, 483; Greinke v. Chicago C.R. Co., 234 Ill. 564, 85 N.E. 327, 329; North Chicago St. R. Co. v. Cotton, 140 Ill. 486, 29 N.E. 899; Lee v. Kansas City Southern R. Co., 220 Fed. 863; Kirkendall v....

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