Rich v. St. Louis & S. F. R. Co.

• Decision Date: 02 July 1912
• Citation: 166 Mo. App. 379,148 S.W. 1011
• Parties: RICH v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

148 S.W. 1011

166 Mo. App. 379

RICH v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

July 2, 1912.

1. COMMERCE (§ 27)—INTERSTATE COMMERCE —STATUTORY REGULATION.

A switchman, engaged in switching in a railroad division yards in the state a car loaded with freight and in transit from the state to another, is engaged in interstate commerce within the Federal Employer's Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1322]).

2. COMMERCE (§ 12)—INTERSTATE COMMERCE —STATUTORY REGULATION.

The Federal Employer's Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1322]) supersedes the law of the state in so far as the latter covers the same field, though the state statute was enacted prior to the federal act and at a time Congress had not acted on the subject.

3. COURTS (§ 97)—CONTROLLING DECISIONS —FEDERAL QUESTIONS.

A decision of the United States Supreme Court construing a federal statute, regulating interstate commerce, is controlling on a state court.

4. DEATH (§ 31) — WRONGFUL DEATH — ACTIONS —STATUTES.

Where a railroad employé engaged in interstate commerce was killed in consequence of a defective car, his widow, though not declaring under the Federal Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1322]), may not sue under Rev. St. 1909, §§ 5425, 5427, authorizing an action by a widow for the death of her husband by wrongful act, but the right of recovery is limited by the federal act requiring the personal representative of decedent to sue for the benefit of the widow and children.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by Eva M. Rich against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Moses Whybark, of Cape Girardeau, W. F. Evans, of St. Louis, A. P. Stewart, of Cape Girardeau. and E. T. Miller, of St. Louis, for appellant. James A. Finch, of Fornfelt, for respondent.

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiff because of the death of her husband through the wrongful act of defendant. Plaintiff recovered in the amount of $7,000, and defendant prosecutes the appeal.

The suit proceeds under the Missouri Statutes which operate the transmission of a cause of action, not exceeding $10,000, to the wife for the death of her husband, resulting from the wrongful act of another. At the time of his death, September 3, 1909, plaintiff's husband, Andrew J. Rich, was in the employ of defendant as the foreman of a switching crew, engaged in switching cars at Chaffee, Mo. The switching crew, together with plaintiff's husband, their foreman, was in the act of dissevering a train and placing the several cars thereof on different tracks in defendant's yards. While thus engaged, it became the duty of Rich, the decedent, to go upon the car and set the brake as it moved down an incline on track No. 6. The evidence tends to prove that this car was equipped with a defective grabiron, in that it was insecurely fastened to its side. Because of such defective fastening, the grabiron gave way and precipitated Rich upon the railroad track, where he was run upon and killed by the car from which he fell. As before said, plaintiff, wife or widow of the decedent, prosecutes the suit under the provisions of the Missouri Statutes (sections 5425, 5427, R. S. 1909) for $10,000 damages alleged to have accrued to her because of the wrongful act of defendant, in that it negligently furnished the car with a defective grabiron for her husband to work upon.

Among other matters set forth in the answer, defendant pleaded that plaintiff could not maintain the suit as the widow of Andrew J. Rich, the decedent, but instead it should be instituted and prosecuted by the personal representative of Rich, in accordance with the provisions of the Federal Employer's Liability Act. This paragraph of the answer sets forth that defendant is a common carrier by railroad, engaged in commerce between the several states, and avers that plaintiff's husband was in its employ at the time of his death. It avers, too, that plaintiff's husband was then and there engaged in interstate commerce, in that he was engaged in switching and upon and about one of its cars then laden with articles of interstate commerce. It is averred that the car on which was the defective grabiron and which occasioned the death of plaintiff's husband was loaded at Portageville, Mo., with merchandise, destined to Pickneyville and Thebes in the state of Illinois, and that said car was then in transit over defendant's railroad from such point in Missouri to Pickneyville and Thebes in the state of Illinois, and as such was employed by defendant as an instrument of interstate commerce, and that, while said car was thus laden with goods destined from a point in Missouri to the points named in Illinois and being switched in the yards at Chaffee, plaintiff's husband came to his death thereby while he was engaged in the transportation of interstate commerce in the act of switching the same from one track to another. Because of these facts, defendant denied plaintiff's right to maintain this suit under the Statutes of Missouri and averred that, if any cause of action whatever existed against it on account of the death of Rich, it should be prosecuted by his personal representative under the act of Congress entitled "An act relating to the liability of common carriers by railroad to their employés in certain cases, approved, April 22, 1908." Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1322).

On motion of plaintiff, the court struck out the fourth paragraph of the answer, above epitomized, as though the matter therein set forth was wholly immaterial to the right of the widow to proceed with the suit. There can be no doubt that the court erred in this ruling, for, if the facts thus set forth are true, plaintiff's husband was engaged in interstate commerce at the time of his death.

It has been pointedly determined that a car laden with goods and being moved from a point in one state to a point in another is impressed with the character of interstate traffic, which will follow and attend the shipment until the transit ceased and this, too, notwithstanding the fact that the injury complained of was received in switching such car in the yards of a railroad division, as here. Such is the opinion of the United States Circuit Court of Appeals of this, the Eighth Circuit, as will appear by reference to Chicago, M. & St. P. Ry. Co. v. Voelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264. For other authorities reflecting the principle, see United States v. Colorado & N. W. R. Co., 157 Fed. 321, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167, 13 Ann. Cas. 893 (C. C. A. 8th Circuit); Norfolk & W. Ry. Co. v. United States. 177 Fed. 623, 101 C. C. A. 249 (C. C. A. 4th Circuit). That plaintiff's husband was engaged in the transportation of interstate commerce at the time of his death is not to be doubted, for he was then acting in the authority of the master as defendant's servant in switching a car laden with articles of commerce in transit from one state to another.

In the recent case of Walsh v. New York, New Haven, etc., R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. ___, the decedent, a car repairer, in the employ of the railroad company, came to his death while engaged in replacing a drawbar in one of defendant's cars then laden with interstate commerce, as a result of other cars being pushed by fellow servants of the decedent against the car under repair. On this state of facts, the Supreme Court of the United States declared the decedent was engaged in interstate commerce at the time of his death, and that the cause of action which accrued therefrom was properly prosecuted under the Employer's Liability Act. See Second Employer's Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. ___. As touching upon the same matter, see Zikos v. Oregon R. & N. Co. (C. C.) 179 Fed. 893; Colasurdo v. Central Railroad of New Jersey (C. C.) 180 Fed. 832. These authorities are conclusive on the question here in judgment, to the effect that plaintiff's husband was engaged in interstate commerce at the time of his injury and death.

This being true, the act of Congress, approved April 22, 1908, entitled "An act relating to the liability of common carriers by railroad to their employés in certain cases," supersedes the law of the state in so far as the latter covers the same field and precludes the right of the widow to recover under our statutes. Sections 5425, 5427, R. S. 1909. The portions of that act relevant here are the...