Moliter v. Wabash Railroad Co.

• Decision Date: 06 April 1914
• Citation: 168 S.W. 250,180 Mo.App. 84
• Parties: H. E. MOLITER, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

168 S.W. 250

180 Mo.App. 84

H. E. MOLITER, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

April 6, 1914

Appeal from Clay Circuit Court.--Hon. Frank P. Divelbiss, Judge.

REVERSED.

Judgment reversed.

J. L Minnis and Sebree, Conrad & Wendorff for appellant.

(1) Plaintiff's petition does not state a cause of action under the Federal Employers' Liability Act of April 22 1908. Brinkmeier v. Railroad, 224 U.S. 268, 56 Law Ed. 758; Railroad v. Wulf, 226 U.S. 567, 57 Law Ed 353; Lumber Co. v. Railroad, 216 Mo. 678-679; McKenzie v. Railroad, 216 Mo. 14. (2) Plaintiff's instruction on the measure of damages is erroneous. Federal Employers' Liability Act, sec. 3; Thornton, Fed. Employers' Liab. & Safety Appli. Acts (2 Ed.), sec. 52; Schmidt v. Railroad, 83 Ill. 410; Railroad v. Hotherington, 83 Ill. 510; Railroad v. Dillon, 17 Ill.App. 355; Railroad v. Harwood, 90 Ill. 425. (3) The issue of proximate cause under either Federal or State law. Safety Appli. Act of Congress, sec. 2; U. S. v. Railroad, 157 F. 895; Johnson v. Pacific Co., 196 U.S. 18; Bokamp v. Railroad, 123 Mo.App. 284; Brubaker v. Electric Co., 130 Mo.App. 448; Hull v. Transfer Co., 135 Mo.App. 122; Monday v. Railroad, 136 Mo.App. 696.

Stivers & Morris and W. W. Calvin for respondent.

(1) While it is true, as contended by appellant, that plaintiff's petition did not charge that defendant was, at the time of plaintiff's injury, regularly engaged in interstate traffic, yet when it developed in testimony that such was the fact, then the Federal Employers' Liability Act of April 22d, 1908, became applicable, and excluded and superseded all laws which otherwise would have been applicable to plaintiff's cause of action. Thornton, The Federal Employers' Liability and Safety Appliance Acts (2 Ed.), page 223; Railroad v. Hawley, 123 S.W. 728; Gound v. Railroad, 173 F. 527; Smith v. Railroad, 175 F. 506; Gikos v. Railroad, 179 F. 893. (2) The failure, however, of plaintiff to amend his petition, making it to conform to the proof as adduced, constitutes, at best, only harmless error, and affords no sufficient ground for the reversal of this cause; inasmuch as the same did not amount to a material variance, within the meaning of Secs. 1846 and 1847, R. S. 1909; but, granting that the same did constitute a material variance, defendant cannot now complain thereof, inasmuch as it failed to avail itself of its rights, as prescribed by the statute to which reference has just been made. Choquette v. Railroad, 152 Mo. 257; Hausler v. Stix, 113 Mo.App. 162; Ingwersen v. Railroad, 116 Mo.App. 139; Bank v. Lumber Co., 121 Mo.App. 324; Railroad v. Voelker, supra; Railroad v. Wulf, 226 U.S. 567, 57 Law Ed. 353.

OPINION

ELLISON, P. J.

Plaintiff was an employee 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 $ 8000, and afterwards entered a remittitur for $ 500, when judgment was rendered for $ 7500. 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, 56 L.Ed. 72, 32 S.Ct. 2; Pederson v. Railroad Co., 229 U.S. 146; N. Car. Ry. v. Zachary, 34 S.E. 305 (decided February 14, 1914); McAdow v. K. C. Western Ry. Co., 164 S.W. 188.] 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 "become 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, 56 L.Ed. 327, 32 S.Ct. 169; St. L., I. M. & So. Ry. Co. v. Hesterly, 228 U.S. 702, 57 L.Ed. 1031, 33 S.Ct. 703; Oliver v. N. P Ry. Co., 196 F. 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, 39 L.Ed. 983, 15 S.Ct. 877; St. L. & San. F. Ry. Co. v. Seale, 229 U.S. 156.]

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 Fed. Employers Liability Act, sec. 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, 57 L.Ed. 355, 33 S.Ct. 135. 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 railroads to their employees 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, 56 L.Ed. 327, 32 S.Ct. 169.] 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. Plaintiff then submitted his case to the jury by instructions drawn under his petition and obtained a verdict and judgment under his petition, when his evidence showed a different cause of action--a cause of action under the Federal statute. So the case upon which he wants an affirmance of the judgment is one that has not been submitted to the jury. No judgment was rendered on the case he now brings forward. There was a verdict against defendant for $ 8000 of which $ 500 was remitted. In due time defendant filed a motion for a new trial in which one of the grounds set up was that "Under the evidence a Federal question is involved in the construction of the Federal Employers Liability Act of April 22, 1908, and the construction of which by the court was erroneous." The motion, as well as one in arrest, was overruled and judgment rendered for $ 7500.

The Federal statute (R. S., sec. 709) gives the Supreme Court of...