Osborne v. Jennie Gray

• Decision Date: 17 April 1916
• Docket Number: No. 373,373
• Citation: 60 L.Ed. 865,36 S.Ct. 486,241 U.S. 16
• Parties: E. C. OSBORNE, Receiver of the Chattanooga Southern Railroad Company, v. JENNIE B. GRAY
• Court: U.S. Supreme Court

241 U.S. 16

36 S.Ct. 486

60 L.Ed. 865

E. C. OSBORNE, Receiver of the Chattanooga Southern Railroad Company,

v JENNIE B. GRAY.

No. 373.

Argued April 3, 1916.

Decided April 17, 1916.

Messrs. William L. Frierson and Lewis M. Coleman for plaintiff in error.

[Argument of Counsel from pages 16-18 intentionally omitted] Messrs. B. E. Tatum, P. H. Thach, Felix D. Lynch, George W. Chamlee, and Joe V. Williams for defendant in error.

Mr. Justice Hughes delivered the opinion of the court:

This suit was brought, in the year 1908, by Jennie B. Gray to recover damages for the death of her husband, who was employed in the operation of the railroad of which the plaintiff in error and another were receivers. The original declaration sought recovery for negligence, at common law, and did not allege that the deceased was injured while engaged in interstate commerce. The plaintiff was permitted to file an additional count, and this was subsequently amended so as to allege the interstate character of the employment of the deceased at the time of his injury. The action was first tried in November, 1912; the jury rendered a verdict in favor of the plaintiff of $10,000 and judgment was entered accordingly. Thereupon, the trial judge granted a new trial upon the ground that he had erred in his instructions to the jury with respect to the burden of proof. At the second trial, in 1913, a verdict was directed for the defendants (the plaintiffs in error) and judgment in their favor was entered. The court of civil appeals reversed this judgment and reinstated the judgment entered upon the verdict at the first trial. The court of civil appeals did not consider the record of the second trial, but was of the opinion that the verdict first rendered in favor of the plaintiff should not have been set aside. This decision was affirmed by the supreme court of the state, without opinion.

The plaintiff in error presents for our consideration these assignments of error: (1) That the court erred in not holding that both counts of the declaration stated a case controlled by the Federal employers' liability act, and that, therefore, the widow could not recover in a suit begun in her own name; and (2) that the court erred in not holding that the evidence on the first trial made a case within the Federal act.

In support of the first assignment, it is insisted that the amendment inserting the allegation that the injury was sustained while the decedent was engaged in interstate commerce amended both counts of the declaration. The state court treated it as an amendment of the second count, and thus the declaration on which the case was tried was deemed to contain two counts, 'one under the common law of Tennessee and the other charging negligence under the employers' liability act.' From a Federal standpoint, the question is not important, for if it had been shown that the injury had been received in interstate commerce, the defendants would have been entitled to insist upon the applicable Federal law as the exclusive measure of their liability, and they would not have lost this right merely because the plaintiff had seen fit to present the claim 'in an alternative way,' by means of separate counts. Wabash R. Co. v. Hayes, 234 U. S. 86, 90, 58 L. ed. 1226, 1230, 34 Sup....