Nordgard v. Marysville & N. Ry. Co.

• Decision Date: 09 November 1914
• Docket Number: 2398.
• Citation: 218 F. 737
• Parties: NORDGARD v. MARYSVILLE & N. RY. CO. et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

218 F. 737

NORDGARD v. MARYSVILLE & N. RY. CO. et al. ^[1]

No. 2398.

United States Court of Appeals, Ninth Circuit.

November 9, 1914

John T Casey, of Seattle, Wash., for plaintiff in error.

Hughes McMicken, Dovell & Ramsey, of Seattle, Wash., for defendants in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge.

In an action in the court below, brought by a brakeman of a railway train of the defendants in error to recover damages for personal injuries under the provisions of the Employers' Liability Act of Congress of 1908, the court below directed a verdict for the defendants, the defendants in error here, on the ground that the defendants were not engaged in interstate or foreign commerce.

The record shows that the defendant the Stimson Mill Company was engaged in the logging and lumber business, and carried logs on the Marysville & Northern Railway Company, its logging road, from its own timber lands in the forest to the waters of Puget Sound. It dumped all its logs into those waters. A portion of the logs was thereafter sold to various mills on the Sound, and the remainder was taken to the defendant's mill at Ballard, and there manufactured into lumber. The lumber was piled in the mill company's lumber yard. About 20 per cent. of it was sold in the local market, and the remainder, on orders thereafter obtained, was shipped to points in other states and countries. A portion of the timber so hauled on the logging road consisted of poles for electric wires.

One Vollans, a dealer in cedar poles and piling, testified that he sold about 60 per cent. of his poles in California, and 40 per cent. locally. He said:

'I bought the poles from them (the mill company), and they delivered them into the water at Ebey Slough, where they were received by me. I paid so much a pole delivered in the water at Ebey Slough. There I took the poles, rafted them, and towed them away. ' 'The contract was so much a thousand delivered into the water at Ebey Slough, including the hauling over the railroad.'

The question is whether, under these facts, either of the defendants was engaged in interstate commerce over the logging road. The Supreme Court has defined what is not and what is interstate commerce. In Coe v. Errol, 116 U.S. 517, 525, 6 Sup.Ct. 475, 477 (29 L.Ed. 715), the court said of goods in transit:

'There must be a point of time when they cease to be governed exclusively by the domestic law and begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement for transportation from the state of their origin to that of their destination. When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepot for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the state to the state of their destination, or have started on their ultimate passage to that state.'

The court quoted from the opinion in the case of The Daniel Ball, 10 Wall. 557, 565 (19 L.Ed. 999):

'Whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced.' And added:

'But this movement does not begin until the articles have been shipped or started for transportation from the one state to the other. The carrying of them in carts or other vehicles, or even floating them, to the depot where the journey is to commence, is no part of that journey. * * * Until actually launched on its way to another state, or committed to a common carrier for transportation to such state, its destination is not fixed and certain. It may be sold or otherwise disposed of within the state, and never put in course of transportation out of the state.'

The language so used in that opinion applies in every particular to the facts in the present case. The poles which were sold to Vollans were not shipped to him from the logging camp, but were sold and delivered to him at tide water. There he took them and towed them away. The testimony does not disclose to what point he towed them, but we may assume that he towed them to a storing place which answered for his warehouse, where he kept his stock in trade, out of which he sold his poles and piling, and where the poles lay until they were sold to customers. It was not known and could not be determined that any particular poles or particular car load of poles were, while being carried on the defendant's road, on their way to a foreign market. As was said in Coe v. Errol, they might be sold or otherwise disposed of within the state, 'and never put in course of transportation out of the state.'

The cases which are cited to sustain the view that these poles were, while on the defendant's road, in the course of interstate transportation, have not in any way modified the principles announced in Coe v. Errol, but, on the contrary, have reaffirmed the same, and in each case there has been quoted the rule of Mr. Justice Bradley in Coe v. Errol that the test is whether the goods have commenced their final movement for transportation from the state of their origin to that of their destination.

In Texas & N.O.R.R. Co. v. Sabine Tram Co., 227 U.S. 111, 33 Sup.Ct. 229, 57 L.Ed. 442, lumber was ordered manufactured and shipped for export through a port where there was no local trade, and it was there shipped to its final destination by a vessel not designated before arrival. The court held that a continuous line of shipments through the same port to foreign ports of merchandise in which there is no local trade shows a continuity of transportation which is not broken by a mere delay in transshipment.

In Louisiana R.R. Comm. v. Texas & Pac. Ry. Co., 229 U.S. 336, 33 Sup.Ct. 837, 57 L.Ed. 1215, the court, while holding that a shipment intended for export to a foreign country but shipped to the exporting seaport on local bills of lading, was interstate commerce, said:

'The shipments were in the physical custody of the railroad company until arrival at New Orleans, and thereafter in the physical custody of the steamships, which issued bills of lading therefor to the shippers of the cargo.'

In So. Pac. Terminal Co. v. Int. Com. Comm., 219 U.S. 498, 31 Sup.Ct. 279, 55 L.Ed. 310, the goods were all destined for export and were shipped on initial bills of lading to a terminal in the same state where they were to be delivered to a carrier for a foreign destination. The court held, following Coe v. Errol, that goods destined for export are necessarily in interstate, as well as in foreign, commerce, when they actually start in the course of transportation to another state, or are delivered to a carrier for transportation.

In line with these decisions is Ohio R.R. Comm. v. Worthington, 225 U.S. 101, 32 Sup.Ct. 653, 56 L.Ed. 1004. In that case coal was shipped from points in the state of Ohio to 'on board' vessels at the port of Huron, but it was all intended for shipment to some point beyond the state, undetermined at the time of shipment, but determined after arrival at Port Huron. The court said:

'By every fair test the transportation of this coal from the mine to the upper Lake ports is an interstate carriage, intended by the parties to be such.'

In all of these cases the goods, from the time of their initial shipment, were all on their way to points in another state or country. There might be a pause or delay at a point of transshipment; there might be uncertainty of identity of connecting carriers; there might even be uncertainty as to the precise point of their ultimate destination; but in each case it could be positively affirmed that from the beginning of their transportation they were all in course of transit to points beyond the state in which the original shipment was made.

In the case at bar there was no initial shipment of the goods. The transportation of the poles from the forest in which they were cut to tide water, where they were sold, was not a shipment. There was no contract of carriage; there was no bill of lading; there was no consignor or consignee. The goods were not committed to a carrier. The defendant mill company simply carried over its own road, on its own cars, its own goods to a market where it sold and delivered them. It had no concern with the subsequent disposition of them. It was under no obligation to deliver them to another carrier, and no other carrier was under obligation to receive them or carry them further. The selling of the poles after the first sale by the mill company, or whether they were going outside of the state, depended upon chance or the exigencies of trade. The movement of the poles did not become interstate commerce until by the act of the purchasers thereof the poles were started on their way to their destination in another state or country. The beginning of the transit which constitutes interstate commerce--

'is defined in Coe v. Errol to be the point of time that an article is committed to a carrier for transportation to the state of its destination, or started on its ultimate passage. ' General Oil Co. v. Crain, 209 U.S. 211, 229, 28 Sup.Ct. 475, 52 L.Ed. 754.

We find no error. The judgment is affirmed.

ROSS Circuit Judge (dissenting).

This is a personal injury case, and the real question is whether either of the defendants in error was, at the time the plaintiff in error received the injuries for which he sued, a carrier by railroad engaged in...