Southern Ry. Co. v. Maxwell

• Decision Date: 11 March 1918
• Docket Number: 19996
• Citation: 117 Miss. 62,77 So. 905
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. MAXWELL

77 So. 905

117 Miss. 62

SOUTHERN RAILWAY COMPANY v. MAXWELL

No. 19996

Supreme Court of Mississippi

March 11, 1918

Division A

APPEAL from the Circuit Court of Tishomingo County, HON. CLAUDE CLAYTON, Judge.

Suit by Lawerence Maxwell against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

J. M Boone, for appellant.

Our main reliance for a reversal of this case is that the evidence in the case fails to show as a matter of law that the plaintiff Maxwell was employed in interstate commerce at the time he received his injury and the court below therefore erred in refusing the peremptory instruction for the defendant as the case made out by the declaration was not in the slightest particular supported by the evidence. We presume that it will be conceded by appellee that if the evidence does not support the allegation of the declaration that plaintiff was, at the time he received his injury employed in interstate commerce, that it necessarily follows the case should be reversed. We will therefore present our views upon this issue in the case.

We content ourselves by citing authorities as to the test as to whether or not the injured person was employed in interstate commerce. In the case of Shanks v. The Delaware, etc Railroad Co., 239 U.S. 556, 60 Law Ed. 436, the court said: "The true test of employment in such commerce in the sense intended is, was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?

This identical language in the Shanks case was adopted by the court in the case of C., B. & Q. Railroad v. Harrington, 241 U.S. 177; 60 Law Ed. 941. The case of Y. & M. V. R. R. Co. v. Houston, 75 So. 690, is directly in point. I. C. Railroad Co. v. Behrnes, 233 U.S. 473, 58 Law. Ed. 1051; Yurkonis case, 238 U.S. 439. This Harrington case was followed by the case of the Lehigh Valley Railroad Co. v. Barlow, decided May 21, 1917, by the supreme court of the United States, reported in Advance Sheets of the Lawyers' Co-operative Edition, July 1, 1917, page 515; Raymond v. The C. & S. P. Ry., Decided March 6, 1917, Advance Sheets, Lawyers' Co-op. Ed., April 1, 1917, page 268; Central Railroad of N. J. v. Paslick, 239 F. 713; Minneapolis, etc., R. R. Co. v. Winters, 242 U.S. 353; Kelly v. Pennsylvania Railroad, 238 F. 95.

All the decisions seem to be uniform as to persons injured while not immediately working on the track or handling the trains and we find no conflict with them with the decisions cited in the brief. We think this case on this point ought to be reversed and dismissed. There would be no particular benefit to reverse the case and remand it for the reason that an amendment could not be made except an amendment that would rely upon the new cause of action rather than the one relied upon in this declaration as the Alabama law in which this injury occurred is materially different from the Federal Employers' Liability Act. In this: First, in Alabama they have no comparative negligence statute as does the federal act; second, the fellow-servant rule is not the same as under the Federal Act; and, third, Alabama has a state Employers' Liability Act which is materially different in many material respects in its provisions from the Federal Employers' Liability Act. Civil Code 1907, chapter 80, section, 3910 of Alabama.

Any attempted amendments would simply be another cause of action and this new cause of action would exist where it would be a departure either from fact to fact or from law to law as was held by the court in the case of U. P. R. Co. v. Wiley, 158 U.S. 285, 39 Law Ed. 983.

W. H. Kier and Earl King, for appellant.

Was Maxwell at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it? What was the plaintiff Maxwell doing at the time of receiving his injury for which recovery is sought in this cause? Every line of evidence with respect to the nature of his work at that time has been quoted and it is submitted that this evidence shows him to have been unloading piling from cars which had been "spotted" on the sidetrack at Sheffield, Alabama, and which piling was unloaded for the purpose of being stored in the lumber yards of the defendant company at that point. There is not one line of evidence that this piling was being unloaded for the purpose of becoming an instrumentality of interstate commerce. There is nothing to show that its future use might be in the furtherance of interstate commerce. It was simply being unloaded and stored on the yards of defendant company at Sheffield, Alabama, with no further use appearing. There is no line of evidence in this record as to how long this car had been in the yards of Sheffield, Alabama or when it arrived. On these facts defendant confidently submits that the work of unloading this car was not within the purview of the Employer's Liability Act, and that the plaintiff who received injuries while engaged in this work does not come within the purview of the Employer's Liability Act, and that the plaintiff, who received injuries while engaged in this work does not come within the protection of that act. Chicago, Burlington & Quincy Railroad Co. v. Harrington, 241 U.S. 177; Illinois Central R. R. v. Behrens, 233 U.S. 473, 478; Shanks v. Del Lack & Sest. R. R., 239 U.S. 556, 558; Minneapolis, etc., Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. , 239 F. 714; Central R. Co. of New Jersey v. Paslick, 239 F. 713, Law (P L.1911,) p. 134.

It is not profitable to discuss the cases following the Pedersen decision, further than to point out that in Chicago, etc., R. R. v. Harrington, 241 U.S., at page 190, 36 S.Ct. 517, 60 L.Ed. 941, it was held that the true test of employment in interstate commerce in the sense intended by the statute is: "Was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?

A most recent case from the supreme court of the United States, illustrating the above principle is that of Lehigh Valley Railroad Company v. Barlow, decided May 21, 1917, page 515, Advance Sheet of the United States Reporter, case No. 194; Deleware, etc., R. Co. v. Yurkonis, 238 U.S. 444, 35 S.Ct. 902, 59 L.Ed. 1397; Pedersen v. Deleware, etc., Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914; Minneapolis, etc., Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. (January 8, 1917).

The plaintiff founded his case and grounded the relief sought on the Federal Employer's Liability Act. The case has been tried under that act as the law. That is the law the court charged. That is the law on which the defendant moved the court for a directed verdict. That is the law given the jury to guide its findings. That is the law and the only law which the jury considered in finding its verdict in this case. It is that statute which must determine the rights of the parties in this action. C. N. O. & T. P. R. R. v. Clark (Ky), 185 S.W. 94; Covington, etc., St. R. Co. v. Finan, S.W. 153; L. & N. R. Co. v. Strange, 156 Ky. 439, 161 S.W. 239; Bravis v. Railway Co., 217 F. 234; Hoag v. Ulster & D. R. Co., 164 N.Y.S. 529; Karras v. Chi. & N.W. R. Co. (Wis.), 162 N.W. 923; Barker v. Kansas City, M. & O. R. Co., 94 Kans, 176, 146 P. 358; M., K. & T. R. Co. v. Fesmire (Tex.), 150 S.W. 201; Pierson v. N. Y., S. & W. R. Co., 83 N.J.L. 661, 85 A. 233; Raymond v. Chi., M. & St. P. R. Co., 243 U.S. 27 S.Ct. 268; C., N. O. & T. P. R. Co. v. Hasford (Ky.), 190 S.W. 690; Railroad v. Watson (Tex. Civ. App.), 195 S.W. 1177; Alexander v. Great N. R. Co. (Mont.), 154 P. 914; Giovio v. N. Y. Cent. R. Co., 162 N.Y.S. 1026; Kelly v. Pa. R. Co., 238 F. 95; Y. & M. V. v. Houston, 75 So. 690.

Wherefore, upon this record we most respectfully submit that the defendant herein has not had a fair and impartial trial, and that the judgment of the circuit court should be reversed and this case should be dismissed.

T. H. Elam and Cunningham & Cunningham, for appellee.

We think that an employee engaged in the unloading of interstate shipments before the shipment on cars have ever been stored is engaged in interstate commerce, and we cite the following authorities for the court to consider on this proposition, to wit:

Robert's Injuries Interstate Employees, section 38, page 88, and the citations thereunder; also Thornton's Employer's Liability Act, section 37, page 83, and the citations thereunder, especially St. Louis, S. F. & T. R. Company v. Scale, 229 U.S. 156; Alabama Great Southern Railway Company v. Scotzy, 71 So. 336 (Ala.); Seaboard Airline R. Co. v. Koennecke, 239 U.S. 352, 60 L. Ed, 1334; also Great Northern Railway Company v. Otos, 60 L.Ed. (U.S.) 322.

We think this falls far short of coming under the rule in the Harrington case cited in the Barlow case, because the storage in both of these cases took place before the injury. In this case the evidence does not show that the cars had ever been stored, but that they were for the first time brought to the proper siding for unloading, after which unloading the piling for the first time were to be stored.

The declaration in this cause states a clear and distinct cause of action under the Employer's Liability Act of the state of Alabama, chapter 80, Code of Alabama, 1907. The case was tried in the lower court in every way consistent with defendant's rights under the Alabama Law, as well as under the Employer's Liability Act, provided by federal statutes.

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