State ex rel. Missouri-Kansas-Texas R. Co. v. Shain

• Decision Date: 07 February 1939
• Docket Number: 36184
• Citation: 124 S.W.2d 1141,343 Mo. 961
• Parties: State of Missouri at the relation of Missouri-Kansas-Texas Railroad Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

124 S.W.2d 1141

343 Mo. 961

State of Missouri at the relation of Missouri-Kansas-Texas Railroad Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals

No. 36184

Supreme Court of Missouri

February 7, 1939

Writ quashed.

Carl S. Hoffman, Frank J. Rogers and Cooper, Neel, Kemp & Sutherland for relator.

(1) The opinion of the Court of Appeals conflicts with the controlling decisions of this court in holding that damages for injuries received by an employee of an interstate carrier by railroad, who is injured while engaged in interstate transportation, may be recovered under State law, and that before the Federal Employers' Liability Act is applicable, such employee must be engaged in interstate transportation by railroad, at the very time of injury. Harris v. Mo. Pac. Ry. Co., 114 S.W.2d 988; Sheehan v. Term. Railroad Assn., 336 Mo. 709, 81 S.W.2d 305; Aldridge v. Wab. Ry. Co., 335 Mo. 588 73 S.W.2d 401; Kepner v. Cleveland, C., C. & St. L. Ry Co., 322 Mo. 299, 15 S.W.2d 825; Milburn v. Chicago M., St. P. & P. Ry. Co., 331 Mo. 1171, 56 S.W.2d 80; Thompson v. Wab. Ry. Co., 262 Mo. 468, 171 S.W. 364. (2) The opinion of the Court of Appeals conflicts with controlling decisions of this court in holding that a railroad employee engaged in work, all of which relates to cars moving in interstate transportation, and which work is directly connected therewith, and it necessarily a direct incident thereto, because its performance is mandatory under the rules of the Interstate Commerce Commission, and its performance is necessary for the carrier to efficiently carry on the interstate transportation to which it relates, is not engaged in work so closely related to interstate transportation as to be a part thereof. Crecelius v Milwaukee Ry. Co., 274 Mo. 671, 205 S.W. 181, Id; 284 Mo. 26, 223 S.W. 413; Milburn v. Chicago, M., St. P. & P. Ry. Co., 331 Mo. 1171, 56 S.W.2d 80; McNatt v. Wabash Ry. Co., 108 S.W.2d 33; Sailor v. Mo. Pac. Ry. Co., 322 Mo. 369, 18 S.W.2d 82. (3) The opinion of the Court of Appeals conflicts with controlling decisions of this court in holding that the interstate status of a car terminates when delivered at the destination of the consignment, even though it was the duty of the carrier to return the car to the point where received and which return trip would be an interstate journey. Thompson v. Wab. Ry. Co., 262 Mo. 468, 171 S.W. 364; LaLone v. Terminal Ry. Co., 316 Mo. 835, 293 S.W. 379; Trowbridge v. K. C. W. B. Ry. Co., 192 Mo.App. 52, 179 S.W. 777; Kepner v. Cleveland C. C. & St. L. Ry. Co., 322 Mo. 299, 15 S.W.2d 825. (4) The opinion of the Court of Appeals conflicts with controlling decisions of this court in holding that the question, as to whether or not a railroad employee comes within the scope of the Federal Employers' Liability Act, depends on whether or not the work in which he is engaged at the time of the injury is necessary to the movement of the cars in interstate commerce. McNatt v. Wab. Ry. Co., 108 S.W.2d 33; Sailor v. Mo. Pac. Ry. Co., 322 Mo. 369, 18 S.W.2d 82; Howard v. Mobile & O. Ry. Co., 335 Mo. 295, 73 S.W.2d 272; LaLone v. Term. Ry. Co., 316 Mo. 835, 293 S.W. 379; Crecelius v. Milwaukee Ry. Co., 284 Mo. 26, 223 S.W. 413; Milburn v. Chicago, M., St. P. & P. Ry. Co., 311 Mo. 1171, 56 S.W.2d 80.

Thomas W. Skidmore, Walter A. Raymond and Fenton Hume for respondents.

(1) This being a certiorari proceeding the court is necessarily concerned only with conflicts with opinions of this court. The issue of interstate commerce being involved rendering applicable the Federal Act is an affirmative defense, as to which, the burden was on relator. The test of the applicability of the Federal Act is solely a factual test, so there can be conflict of opinion only where the facts are so similar as to be practically identical. State ex rel. St. Louis-S. F. Ry. Co. v. Haid, 327 Mo. 221, 37 S.W.2d 438; State ex rel. San Francisco Ry. Co. v. Cox, 329 Mo. 300, 46 S.W.2d 851; State ex rel. Gatewood v. Terminal, 333 Mo. 213, 62 S.W.2d 758; Myers v. C. B. & Q. Ry. Co., 296 Mo. 267, 246 S.W. 263; Allen v. Mo. Pac. Ry. Co., 294 S.W. 83; Cox v. M.-K.-T. Ry. Co., 335 Mo. 1230, 76 S.W.2d 413; Sailor v. Mo. Pac. Ry. Co., 322 Mo. 399, 18 S.W.2d 83; Clevinger v. St. L.-S. F. Ry. Co., 109 S.W.2d 372; Howard v. M. & O. Ry. Co., 335 Mo. 302, 73 S.W.2d 275; Phillips v. Union Term. Ry. Co., 328 Mo. 245, 40 S.W.2d 1047; Montgomery v. Term. Ry. Assn., 335 Mo. 358, 73 S.W.2d 241. (2) The actual ruling of the Court of Appeals whereby it disposed of the case was that the finding of the commission that interstate transportation was not involved was sustained by the evidence. Such ruling is in accord with the ruling of this court, and on the basis thereof, the writ of certiorari should be quashed. Oglesby v. St. L.-S. F. Ry. Co., 318 Mo. 87, 1 S.W.2d 175; Drew v. Mo. Pac. Ry. Co., 100 S.W.2d 520; Howard v. M. & O. Ry. Co., 335 Mo. 303, 73 S.W.2d 275; State ex rel. St. L.-S. F. Ry. Co. v. Haid, 327 Mo. 221, 37 S.W.2d 438; Benson v. Mo. Pac. Ry. Co., 334 Mo. 856, 69 S.W.2d 658; Rutherford v. Tobin Quarries, 336 Mo. 1174, 82 S.W.2d 920; Phillips v. Air Reduction Sales Co., 337 Mo. 593, 85 S.W.2d 554; Mo. Stat. Ann., sec. 3342, p. 8275. (3) The opinion of the Court of Appeals properly holds that the Federal Liability Act applies only where interstate transportation by railroads is involved. The Federal Act itself so limits its application and the controlling decisions of this court so hold. There is, therefore, no conflict in that respect. Harris v. Mo. Pac. Ry. Co., 114 S.W.2d 993; Milburn v. C. M., St. P. & P. Ry. Co., 331 Mo. 1181, 56 S.W.2d 84; Aldridge v. Wabash Ry. Co., 335 Mo. 595, 73 S.W.2d 404; Sheehan v. Term. Ry. Assn., 336 Mo. 713, 81 S.W.2d 306; Drew v. Mo. Pac. Ry. Co., 100 S.W.2d 521; Allen v. St. L.-S. F. Ry. Co., 331 Mo. 473, 53 S.W.2d 889; Stogsdill v. St. L.-S. F. Ry. Co., 337 Mo. 138, 85 S.W.2d 454; State ex rel. Kirby v. Trimble, 326 Mo. 684, 32 S.W.2d 572; State ex rel. Thomas v. Daues, 314 Mo. 32, 283 S.W. 57; State ex rel. Woodson v. Trimble, 287 S.W. 628; Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 527; Nogueira v. New York, N. H. & H. Ry. Co., 281 U.S. 128, 50 S.Ct. 303; Wells Fargo & Co. v. Taylor, 254, U.S. 175, 41 S.Ct. 97. (4) There is no conflict between the opinion of the Court of Appeals and controlling decisions of this court in ruling that although the work may be necessary to interstate transportation, may be made mandatory by the Interstate Commerce Commission and may be demanded by efficiency, yet the Federal Act does not apply where the work only remotely and indirectly affects interstate transportation. Such ruling of the Court of Appeals is in accord with the controlling decisions of this court. Sheehan v. Term. Ry. Assn., 336 Mo. 713, 81 S.W.2d 306; State ex rel. St. L.-S. F. Ry. Co. v. Haid, 327 Mo. 224, 37 S.W.2d 439; Rogers v. M. & O. Ry. Co., 337 Mo. 140, 85 S.W.2d 585; Aldridge v. Wab. Ry. Co., 335 Mo. 595, 73 S.W.2d 404; Fenstermacher v. C., R. I. & P. Ry. Co., 309 Mo. 487, 274 S.W. 721. (5) There is no conflict between the opinion of the respondent judges herein and any opinion of this court in the ruling that on the evidence presented, the interstate character of the movement of cars historically recorded by the documents Hamarstrom was carrying, was terminated upon delivery to the consignee for unloading. The cars were not shown to be definitely committed to interstate commerce exclusively nor was there any showing as to the time any such car actually started on an interstate journey after delivery to the consignee at the end of the outward movement. Myers v. C., B. & Q. Ry. Co., 296 Mo. 267, 246 S.W. 263; Allen v. Mo. Pac. Ry. Ry. Co., 294 S.W. 83; Cox v. M.-K.-T. Ry. Co., 335 Mo. 1230, 76 S.W.2d 413; Markley v. K. C. So. Ry. Co., 338 Mo. 446, 90 S.W.2d 414; Dalyrymple v. Craig, 149 Mo. 359, 50 S.W. 888; Bissel v. St. L.-S. F. Ry. Co., 336 Mo. 851, 81 S.W.2d 623; Shohoney v. Quincy, O. & K. C. Ry. Co., 223 Mo. 664, 122 S.W. 1029; State v. Mo. Pac. Ry. Co., 212 Mo. 676, 111 S.W. 504; Hueston v. Quincy, O. & K. C. Ry. Co., 189 S.W. 1171; Cox v. Mo. Pac. Ry. Co., 332 Mo. 998, 61 S.W.2d 965; Toussaint v. Cleveland, C. C. & St. L. Ry. Co., 104 S.W.2d 264; Jarvis v. C., B. & Q. Ry. Co., 327 Mo. 438, 37 S.W.2d 606; New York Cent. & H. R. Railroad Co. v. Carr, 238 U.S. 260, 59 L.Ed. 1298; Geraghty v. Lehigh Valley Ry. Co., 70 F.2d 302.

OPINION

Tipton, C. J.

Certiorari to the judges of the Kansas City Court of Appeals, bringing up the record in the case of Hamarstrom v. Missouri-Kansas-Texas Railroad Co., reported in 116 S.W.2d 280. That court affirmed the circuit court's judgment, which had approved the action of the Missouri Workmen's Compensation Commission in awarding compensation in favor of Mary L. Hamarstrom against the relator for the death of her husband. The commission found against the relator's contention that the deceased was engaged in interstate transportation at the time he received the injuries from which he died.

The essential facts found by the respondents are as follows: that the relator is an interstate carrier by railroad; that its line runs into Kansas City, Missouri, only, from the State of Kansas; that its freight offices and team tracks are located at Fourteenth and Wyoming Streets in Kansas City, Missouri; that its switch yards and office yard are located at Glen Park, Kansas; that deceased was employed by relator at its freight house in Kansas City, Missouri; that his duties required that he report at the office of relator in Glen Park, Kansas, every night at midnight for the purpose of securing certain reports and tabulated information which had been prepared by the yard clerks...