State ex rel. Mulcahy v. Hostetter

• Decision Date: 07 May 1940
• Docket Number: 36493
• Citation: State ex rel. Mulcahy v. Hostetter, 139 S.W.2d 939, 346 Mo. 65 (Mo. 1940)
• Parties: State of Missouri at the relation of Bridget Mulcahy, Dependent of Robert Mulcahy, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

139 S.W.2d 939

346 Mo. 65

State of Missouri at the relation of Bridget Mulcahy, Dependent of Robert Mulcahy, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 36493

Supreme Court of Missouri

May 7, 1940

Motion for Rehearing Overruled May 7, 1940.

Opinion filed at September Term, 1939, March 6, 1940; motion for rehearing filed; motion overruled at May Term, 1940, May 7 1940.

Writ dismissed.

Maurice Schechter, H. G. Whelan and J. W. Stipelman for relator.

(1) The holding of the Court of Appeals wherein it decides that the employee at the time of his injury was engaged in interstate commerce is in direct conflict with the controlling decisions of the Supreme Court of Missouri and Supreme Court of the United States. Benson v. Mo. Pac. Ry. Co., 334 Mo 851, 69 S.W.2d 656; Shanks v. Del., L. & W. Ry. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C 797; Hamarstrom v. M., K. & T. Ry. Co., 116 S.W.2d 280, writ quashed; State ex rel. M., K. & T. Ry. Co. v Shain, 124 S.W.2d 1141; Drew v. Mo. Pac. Ry. Co., 340 Mo. 321, 100 S.W.2d 516; Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319. (2) The opinion and decision of the Court of Appeals wherein it decides there was substantial basis for the commission's finding that employee at moment of injury was engaged in interstate transportation, when it was not shown what employee was doing, is in direct conflict with the controlling decisions of the Supreme Court of Missouri and the Supreme Court of the United States. Drew v. Mo. Pac. Ry. Co., 340 Mo. 321, 100 S.W.2d 516; Bell v. Term. Railroad Assn., 322 Mo. 886, 18 S.W.2d 40; Benson v. Mo. Pac. Ry. Co., 334 Mo. 851, 69 S.W.2d 656; Shanks v. Del., L. & W. Ry. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319. (3) That the opinion and decision of the Court of Appeals wherein it decides that deceased employee was engaged in interstate commerce if he was then or had immediately been engaged in or was on the way to be engaged in the inspection of tracks and switches used indiscriminately in such commerce is in direct conflict with the controlling decisions of the Supreme Court of Missouri and the Supreme Court of the United States. Bell v. Term. Railroad Assn., 322 Mo. 886, 18 S.W.2d 40; Benson v. Mo. Pac. Ry. Co., 334 Mo. 851, 69 S.W.2d 656; Shanks v. Del., L. & W. Ry. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Hamarstrom v. M., K. & T. Ry. Co., 116 S.W.2d 280, writ quashed; State ex rel. M., K. & T. Ry. Co. v. Shain, 124 S.W.2d 1141; Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319. (4) That the opinion and decision of the Court of Appeals wherein it decides that deceased employee was engaged in interstate commerce is based purely on inferences builded upon inferences and speculative presumptions and is in direct conflict with the controlling decisions of the Supreme Court of Missouri. Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437; State ex rel. Macon v. Trimble, 321 Mo. 671, 12 S.W.2d 727; State ex rel. Mo. Pub. Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551; Meyers v. C., B. & Q. Ry. Co., 296 Mo. 239, 246 S.W. 256, certiorari denied 261 U.S. 624.

Carleton S. Hadley, Arnot L. Sheppard, William A. Thie and Walter N. Davis for respondents.

(1) It is well settled that the Supreme Court will not quash an opinion of a Court of Appeals upon certiorari unless that opinion declares some general principle of law contrary to the controlling announcement of this court upon the same principle, or, on a given state of facts makes some ruling to a controlling decision of this court on equivalent or similar facts. The facts in the two cases need not be identical. They are sufficiently "similar" if both sets of facts as a matter of law require the application of the same rule. State ex rel. v. Shain, 105 S.W.2d 915, 340 Mo. 1195. (2) The cases of Benson v. Mo. Pac. Ry. Co., 334 Mo. 851, 69 S.W.2d 656; Shanks v. Railroad, 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436; Hamarstrom v. Railroad, 116 S.W.2d 280; State ex rel. v. Shain, 124 S.W.2d 1141; Drew v. Mo. Pac. Ry. Co., 340 Mo. 321, 100 S.W.2d 516; Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319, are not in point, because the case under consideration does not declare a principle of law contrary to the controlling of this court upon the same principle, nor are the facts in the case under consideration sufficiently similar to the above cases to authorize certiorari. (3) Where the record contains conflicting facts the finding of the Workmen's Compensation Commission is conclusive on appeal. The evidence in this case was conflicting. Renick v. Mo. Pac. Ry. Co., 95 S.W.2d 872. (4) The Missouri Workmen's Compensation Commission is without jurisdiction to make an award, where the employer is an interstate railroad and the employee on the occasion of his death was engaged in interstate transportation or work so closely related to it as to be a part of it. Morrison v. Term. Railroad, 57 S.W.2d 775; P. & R. Ry. Co. v. Hancock, 253 U.S. 284, 40 S.Ct. 512, 64 L.Ed. 907. (5) Tracks over which interstate and intrastate trains run indiscriminately and the switches in connection therewith, are instrumentalities of interstate commerce and give that character to those employed in connection therewith. Indus. Acc. Comm. v. Davis, 259 U.S. 182, 42 S.Ct. 489, 66 L.Ed. 888; Pedersen v. Del. L. & W. Ry. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125; Koonse v. Mo. Pac. Ry. Co., 18 S.W.2d 467; Crepel v. T. & P. Ry. Co., 152 So. 375; 2 Roberts, Fed. L. of C., sec. 773; 10 A. L. R. 1196, 24 A. L. R. 635, 29 A. L. R. 1208; Kinzell v. Railroad Co., 250 U.S. 130, 63 L.Ed. 393, 39 S.Ct. 412; N. Y. C. Ry. Co. v. Porter, 249 U.S. 168, 63 L.Ed. 536, 39 S.Ct. 188; Koofos v. Railroad, 170 N.W. 859; Kennelly v. Railroad, 48 N.D. 685, 185 N.W. 548; Quirk v. Erie Railroad Co., 235 N.Y. 405, 139 N.E. 556; Carter v. St. L. T. & E. Ry. Co., 307 Mo. 595, 271 S.W. 358. (6) Switch spurs and sidetracks are instrumentalities of interstate commerce. Truesdell v. Railroad, 159 Ky. 718, 169 S.W. 471; Jones v. Railroad, 149 Ky. 566, 149 S.W. 951; Cherry v. A. Coast Line Ry. Co., 174 N.C. 263, 93 S.E. 783; 2 Roberts, Fed. L. of C. (2 Ed.), sec. 767, p. 1479; Dowell v. Wabash Ry. Co., 190 S.W. 939; Kepner v. Railroad, 322 Mo. 299, 15 S.W.2d 825, certiorari denied 280 U.S. 564; C. & O. Ry. Co. v. Kornhoff, 167 Ky. 353, 180 S.W. 523. (7) Where the employee's duties involve both interstate and intrastate commerce indiscriminately the burden of proof is on the dependent to prove that the employee was not engaged in interstate commerce. P. & R. Ry. Co. v. Polk, 256 U.S. 332, 41 S.Ct. 518, 65 L.Ed. 958; P. & R. Ry. Co. v. Di Donato, 256 U.S. 327, 41 S.Ct. 516, 65 L.Ed. 955; Bordelon v. Railroad, 129 So. 454; Bauchspies v. Railroad, 287 Pa. 590, 135 A. 728; Fitzgerald v. Railroad, 196 N.W. 657; A. T. & S. F. Ry. Co. v. Ind. Acc. Comm., 220 P. 342; Dade v. Railroad, 206 N.Y.S. 519; O'Brien v. Penn. Ry. Co., 176 N.Y.S. 390; Mich. Cent. Railroad Co. v. Ind. Comm., 152 N.E. 594.

OPINION

Douglas, J.

This is certiorari to review for conflict with our decisions the opinion of respondents in Mulcahy v. Terminal Railroad Assn. of St. Louis (Mo. App.), 123 S.W.2d 235. The issue was whether the plaintiff's claim was under the Missouri Workmen's Compensation Law (Secs. 3299-3376, R. S. 1929, Ann. Stat., pp. 8229-8294) or the Federal Employers' Liability Act, 45 U.S.C. A., sections 51-59.

These facts are found in the opinion. The plaintiff, relator here, is the widow of Robert Mulcahy, deceased, who was in the employ of the railroad as a watchman. In addition to the usual duties of a watchman he also had the particular duty to walk the track searching for broken rails, defective switches and the like. All the tracks, whether main line, switch or yard tracks were shown to be in continuous and indiscriminate use in both interstate and intrastate commerce, but with interstate commerce comprising eighty per cent of the business handled by the railroad. Mulcahy was specially assigned to the Atlantic yards, working from 6 P. M. to 6 A. M. in the territory ten blocks in length between 21st Street on the east and Montrose Avenue on the west in St. Louis. Atlantic Street, from which the yards adjacent to it take their name is two blocks in length, lying immediately north of and parallel with the tracks between Ewing and Montrose Avenues. Atlantic yards is one of four connecting yards. Jefferson yards are on the east, Rankin yards on the west and Compton yards generally to the north of the Rankin yards.

At 1 o'clock on the morning he was killed Mulcahy had been directed by his superior to go to the Rankin and Compton yards after 4 o'clock to give them the "once over" in place of the watchman regularly assigned there. After he had completed this his work would require that he return to the Atlantic yards for his usual duties, one of which, under a standing order, was protecting an interstate coal train which was due in the lower end of the yards in the course of the early morning. About 4 o'clock that morning in the course of a conversation between Mulcahy and the yard foreman when the two happened to meet near Ewing Avenue, Mulcahy had stated that he had to go "to the west end" and had "headed towards Compton."

Shortly after 5 o'clock his dead body was found lying in Atlantic Street at a point 100 feet west of Ewing Avenue. Death had been caused by a gun shot wound. There were no other marks of violence on the body, and there were no powder burns about the wound. The body was lying with the head towards the east and the...