Moliter v. Wabash R. Co.

• Decision Date: 06 April 1914
• Docket Number: No. 10851.,10851.
• Citation: 168 S.W. 250,180 Mo. App. 84
• Parties: MOLITER v. WABASH R. CO.
• Court: Missouri Court of Appeals

168 S.W. 250

180 Mo. App. 84

MOLITER v. WABASH R. CO.

No. 10851.

Kansas City Court of Appeals. Missouri.

April 6, 1914.

Rehearing Denied May 18, 1914.

1. COMMERCE (§ 27)—INTERSTATE COMMERCE.

One switching cars containing interstate shipments is engaged in interstate commerce.

2. COMMERCE (§ 8)—INTERSTATE COMMERCE— INJURIES.

The exclusive remedy of a railroad employé, injured while engaged in interstate commerce, is under the federal statute, although he may pursue that remedy in the state courts.

3. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—ACTIONS.

In a personal injury action, where the petition stated a cause of action under the state laws, no recovery can be had under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), notwithstanding the evidence showed that plaintiff's rights were governed by that statute.

4. COURTS (§ 396)—UNITED STATES SUPREME COURT—REVIEW OF STATE COURT—FEDERAL QUESTION—HOW RAISED.

Under Rev. St. U. S. § 709 (U. S. Comp. St. 1901, p. 575), giving the federal Supreme Court jurisdiction to review the judgment of the state courts only when a right under a statute is specially set up or claimed, it is not necessary for a federal question to be presented by the pleadings; it being sufficient if it be claimed at the proper time and in the proper way according to the state practice.

5. TRIAL (§ 156)—DEMURRER TO EVIDENCE— QUESTIONS RAISED.

In a personal injury action by a railroad employé, where the petition counted on the state laws, and the proof showed that he was engaged in interstate commerce when injured, a demurrer to the evidence is sufficient to raise the objection that, the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]) being exclusive, no action can be maintained under the state law.

6. NEW TRIAL (§ 40)—MOTION—QUESTIONS RAISED—FEDERAL QUESTION.

In a personal injury action by a railroad employé, where the petition is based on the state laws, a motion for new trial on the ground that the evidence showed the action to be governed by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp.

St. Supp. 1911, p. 1322]) is sufficient to raise that federal question, because the judgment is not considered rendered until the motion for new trial is overruled.

7. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—PLEADING—VARIANCE—AMENDMENT.

Where the petition of a railroad employé relied on the state law, proof that he was injured while engaged in interstate commerce constitutes a complete variance, and the petition cannot be conformed to the proof.

8. APPEAL AND ERROR (§ 1175)—DETERMINATION —REMAND.

Where the petition relied on the state law, and the proof showed that plaintiff's action was governed by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), a judgment for plaintiff must be reversed, and the cause cannot be remanded, so that the petition can be amended, for the causes of action under the state law and the federal Employers' Liability Act are wholly different.

Appeal from Circuit Court, Clay County; Frank B. Divelbiss, Judge.

Action by H. E. Moliter against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Sebree, Conrad & Wendorff, of Kansas City, and J. L. Minnis, of St. Louis, for appellant. Stivers & Morris and W. W. Calvin, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was an employé of defendant and was injured in this state by one of its cars passing over his foot. He brought this action for damages on the ground that, while he was exercising ordinary care, defendant's servants were guilty of negligence. He recovered judgment in the circuit court for $8,000, and afterwards entered a remittitur for $500, when judgment was rendered for $7,500. The petition stated a common-law action, and the cause was submitted to the jury as such character of action, and the judgment was rendered in such character of action.

Plaintiff was a brakeman working on a train running between points in this state, but as shown by the evidence in his behalf, at the time he was injured, his train was composed of freight cars, a part of which were from and destined to points within the state and others were destined to points in Illinois, and he was engaged in assisting to switch interstate cars out of the train onto other tracks. In such circumstances, he was engaged in interstate commerce. South. Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Pederson v. Railway Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125; N. Car. Ry. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. ___ (decided February 2, 1914); McAdow v. K. C. Western Ry. Co., 164 S. W. 188 (decided by us at this term). He admits in this court that he was so engaged.

It is conceded by plaintiff that the petition does not state a case under the Employers' Liability Act of Congress. But he insists that the evidence in his behalf showed a case under that statute, and that thereupon that statute "became applicable and excluded and superseded all laws which would otherwise have been applicable." We agree that, where a servant of a carrier is injured while engaged in interstate commerce, his remedy is under the federal statute. And, though he may pursue that remedy in a state court, his cause of action is exclusively under that statute. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; St. L., I. M. & So. Ry. Co. v. Hesterly, 228 U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. 1031; Oliver v. N. P. Ry. Co. (D. C.) 196 Fed. 432.

Plaintiff's action, as stated in his pleading, being either under the common law or the statute of Missouri, and not under the federal statute, he cannot recover under the latter statute without changing his cause of action from law to law; and that we decided in the McAdow v. K. C. Western Ry. Co., supra, he could not do. See, also, Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983; St. L. & San Fran. Ry. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129.

Plaintiff's insistence is that, if the evidence showed his right of action was under the federal statute, he could recover, although no facts constituting such action were pleaded, and although he did not submit the case to the jury under that statute. That idea is no less than a claim that a pleading does not bind the pleader, and indeed is unnecessary, since a recovery may be had for the violation of any right which the evidence may disclose. The authorities cited by plaintiff in no way support his position. His citation from Thornton's Federal Employers' Liability Act, § 140, is the reverse of it. That author says that if, as here, the petition does not disclose that the action is based on the federal statute, then the plaintiff is not seeking to recover on that statute, "and the sufficiency of his pleading must be measured by the general state law; the provisions of the (Federal) statute not being involved." The author adds that:

"However, if the evidence discloses the case is under the statute, there will be a fatal variance and the plaintiff must fail."

He also cites us to Mo., Kan. & Tex. Ry. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355. The case has no application. In that case the original petition alleged facts which constituted a good cause of action under the Employers' Liability Act, though it was averred therein that the action was brought on the statute of Kansas. An amended petition was filed in which was again averred facts which constituted a good cause of action under the federal statute, but wherein it was alleged that the plaintiff had a cause of action by virtue of both the Kansas and the federal statute. The railway company insisted that the amended petition set up a new and distinct cause of action. Of this the court said:

"It seems to us, however, that, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce. * * * It is true the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress. But the court was presumed to be cognizant of the enactment of the Employers' Liability Act and to know that, with respect to the responsibility of interstate carriers by railroad to their employés injured in such commerce after its enactment, it had the effect of superseding state laws upon the subject. Second Employers' Liability Cases, 223 U. S. 1, 53 [32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44]. Therefore the pleader was not required to refer to the federal act, and the reference actually made to the Kansas statute no more vitiated the pleading than a reference to any other repealed statute would have done."

It will be seen from this quotation that, first and last, a cause of action was stated on the federal statute, while in the case at bar the petition fails altogether to state a cause under that statute.

Defendant made claim against plaintiff's right to recover, even though the evidence did show a case under the federal statute. This claim was made in the trial court, at the close of the evidence, by asking an instruction, in the nature of a demurrer to the evidence, in these words:

"The court instructs the jury at the close of all the evidence in this case that, under the pleadings and the evidence, your verdict must be for the defendant."

This instruction was refused. He then submitted his case to the jury by instructions drawn under his petition, and obtained...