Schendel v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 19 June 1925
• Docket Number: 24,470
• Citation: 204 N.W. 552,163 Minn. 460
• Parties: A. D. SCHENDEL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Minnesota Supreme Court

204 N.W. 552

163 Minn. 460

A. D. SCHENDEL v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

No. 24,470

Supreme Court of Minnesota

June 19, 1925

Action in the district court for Steele county. The case was tried before Senn, J., and a jury which returned a verdict in favor of plaintiff. Defendant appealed. Affirmed.

SYLLABUS

Question for jury whether decedent was employed in interstate commerce.

1. The plaintiff's intestate was a conductor on a train hauling coal cars from the mines to a station on the defendant's main line. On the day of his death his crew hauled a drag containing two interstate cars, and a second drag of all intrastate cars. At the station, under his direction, the second drag was pushed against the first and the brakes on the two interstate cars and one intrastate were set by the brakeman at a desired point on the sidetrack. At the mines the conductor received manifests showing the destination of the cars. This information he telephoned to the operator at a nearby station, and from such information the operator made the shipping bills. The decedent either gave the manifests to the operator or mailed them from the station where he lived. As soon as the brakes were set, which was the last movement in the transportation of the cars, the crew started with the engine and caboose to the station where its members lived for dinner and for water for the engine, intending to return in the afternoon. A rear-end collision occurred through the fault of the train dispatcher. The manifests were in the caboose and were burned. If the deceased had reached the station he would have mailed them to the operator. Whether the deceased was employed in interstate commerce was for the jury.

Award of compensation in later summary proceeding not a bar to action under Federal act.

2. After the plaintiff's action under the Federal Liability Act was commenced, the defendant, as permitted by the compensation act of the state where the accident occurred instituted a proceeding, making the widow of the deceased a party, for the fixing of compensation. The widow answered objecting that her rights were not controlled by the compensation act but by the Federal Liability Act. She took no part in the proceeding except to answer and appeal. An award was made, and it was pleaded by supplemental complaint as a bar upon the question whether the decedent was employed in interstate commerce. It is held that under the Federal act the plaintiff had a right to have his right determined in the courts designated by the act, such courts being courts proceeding according to the general course of the common law, and that an award in a later summary compensation proceeding was not a bar.

No estopped by award of compensation where no identity of parties in litigation.

3. An action under the Federal act can be maintained only by the personal representative, not by the beneficiary. The beneficiary, not the personal representative, is a party in the compensation proceeding. It is held, following Dennison v. Payne, 293 F. 333, 342, that there was not an identity of parties so that an estoppel by the award could be invoked.

Special administrator may maintain action under liability act.

4.An action under the Federal Liability Act may be maintained by a special administrator.

Damages not excessive.

5. The verdict is not excessive.

1. See Master and Servant, 26 Cyc. pp. 1382, 1462 (Anno).

2. See Master and Servant, 26 Cyc. p. 1382; Workmen's Compensation Acts, C.J. p. 117, § 115 (Anno).

3. See Death, 17 C.J. p. 1266, § 116.

4. See Death, 17 C.J. pp. 1265, 1266, § (Illegible Word)

5. See Death, 17 C.J. p. 1350, § 235.

1. See notes in 10 A.L.R. 1184; 14 A.L.R. 732; 24 A.L.R. 634; 29 A.L.R. 1207; 18 R.C.L. 852; 3 R.C.L. Supp. 862; 4 R.C.L. Supp. 1218; 5 R.C.L. Supp. 1008.

5. See note in L.R.A. 1915C, 88, 89; 18 R.C.L. 863; 3 R.C.L. Supp. 866; 4 R.C.L. Supp. 1223; 5 R.C.L. Supp. 1009.

O'Brien, Horn & Stringer, for appellant.

Tom Davis, Ernest A. Michel and Leach & Leach, for respondent.

OPINION

DIBELL, J.

Action under the Federal Employers Liability Act to recover for the death of Clarence Y. Hope, plaintiff's intestate, an employe of the defendant. There was a verdict for the plaintiff. The defendant's motion for judgment notwithstanding the verdict or a new trial was denied. The defendant appeals from the judgment entered upon the verdict.

The decedent's death occurred in Iowa in a rear-end collision between a through passenger train and an engine and caboose upon which the deceased and other members of the crew were going home to dinner after hauling state and interstate cars from the coal mines to the defendant's main line. The accident was caused by the fault of the train dispatcher in letting the engine and caboose onto the main line in front of the coming passenger train. The defendant concedes negligence.

The questions are:

(1) Whether the evidence sustains the finding of the jury that the deceased was employed in interstate commerce.

(2) Whether proceedings taken in Iowa under its compensation act, upon the initiative of the defendant, after the commencement of this action, resulting in an award to the widow of the decedent, bars a recovery upon the ground that it was there determined that the deceased was engaged in intrastate commerce.

(3) Whether there is such identity of parties as to make the finding that the decedent was employed in intrastate commerce available as an estoppel.

(4) Whether the action may be maintained by a special administrator.

(5) Whether the verdict is excessive.

1. The decedent, Clarence Y. Hope, was the conductor of a train engaged in hauling cars from coal mines in Iowa to Pershing on the defendant's main line 10 miles away. He and the rest of the crew lived at Chariton on the main line southerly of Pershing. On the morning of February 4, 1923, the plaintiff and his crew left Chariton, went to Pershing, and commenced the work of hauling the loaded cars of coal from the mines to the Pershing yards. The first drag was of 11 cars of which two were interstate. The second drag was of 10 cars, all intrastate. Under the directions of Hope the second drag was shoved against the first on a sidetrack and the brakes set on the two interstate cars and one other. Apparently this was done to convenience the work yet remaining. This work was the last which the crew did in the physical movement of the two interstate cars, or in the transportation of any coal cars. The hauling of interstate cars from the mines to the Pershing yards was a movement in interstate commerce. Philadelphia & R. Ry. Co. v. Hancock, 253 U.S. 284, 40 S.Ct. 512, 64 L.Ed. 907, and cases cited.

Immediately after setting the brakes the engine was coupled to the caboose and the crew started to Chariton for dinner. The collision occurred within the Pershing yard limits. The facts bring the case fairly within those holding the employe within the provision of the act when going to or returning from his place of work. Erie R. Co. v. Winfield, 244 U.S. 170, 173, 37 S.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662; North Carolina R. Co. v. Zachary, 232 U.S. 248, 260, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159; Director General v. Bennett (C.C.A.) 268 F. 767; Erie R. Co. v. Downs, 250 F. 415, 162 C.C.A. 485; Dennison v. Payne, 293 F. 333, where the facts are similar to those in the case at bar. The case of Erie R. Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319, where the work of the employe was finished and he was reporting for orders, is distinguishable. In the Winfield case the court said:

"In leaving the carrier's yard at the close of his day's work the deceased was but discharging a duty of his employment. * * * Like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day's work was in both interstate and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both. That he was employed in interstate commerce is therefore plain, and that his employment also extended to intrastate commerce is for present purposes of no importance."

When the crew left Pershing for Chariton it intended returning in the afternoon to complete the unfinished work of hauling the coal cars from the mines to the Pershing yards; and if it had done so it would have moved interstate and intrastate cars as occasion required. No further orders to do the work were necessary; though to use the main line in returning to Pershing running orders from the train dispatcher would have been necessary. The crew intended taking water for the engine at Chariton. It could not be had at the mines or at Pershing. The intended return in the afternoon and the necessity of getting water at Chariton are urged by the plaintiff as facts of consequence. Facts somewhat like these were held not important in Dennison v. Payne, 293 F. 333, and cases are cited there in support of that view. There may be distinguishing facts in the cases cited. We do not stop to analyze or consider them; but it is proper to note that the crew were intending to return and to some extent this may characterize their work at the time. Baltimore & O.R. Co. v. Kast (C.C.A.) 299 F. 419. It was not reporting to Chariton for orders. There was unfinished work at the mines which would have been done without further direction except for the collision.

There is another feature to which the plaintiff attaches importance. At the mines the conductor received manifests showing the destination of the cars. From Pershing he telephoned to the operator at Williamson, a few miles northerly...