State ex rel. St. Louis-San Francisco Ry. Co. v. Haid

• Citation: 37 S.W.2d 437,327 Mo. 217
• Decision Date: 25 March 1931
• Docket Number: 29939
• Parties: The State ex rel. St. Louis-San Francisco Railway Company v. George F. Haid et al., Judges of St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

37 S.W.2d 437

327 Mo. 217

The State ex rel. St. Louis-San Francisco Railway Company v. George F. Haid et al., Judges of St. Louis Court of Appeals

No. 29939

Supreme Court of Missouri

March 25, 1931

Certiorari to St. Louis Court of Appeals.

Writ quashed.

E. T Miller, A. P. Stewart and C. H. Skinker, Jr., for relator.

(1) Under the facts as set forth in the opinion of the Court of Appeals plaintiff was, as a matter of law, engaged in interstate commerce, and the ruling of the Court of Appeals that it was a jury question as to whether or not plaintiff at the time he received his injury was engaged in intrastate commerce or interstate commerce, contravenes the rulings of this court in the following cases: Crecelius v Railway, 284 Mo. 39; Carter v. Railroad, 307 Mo. 604; Sells v. Railroad, 266 Mo. 155. (2) The ruling of the Court of Appeals, that the trial court did not err in refusing to give Instruction D on assumption of risk requested by relator, contravenes the rulings of this court in the following cases: Osborn v. Railway, 1 S.W.2d 181; Quigley v. Hines, 291 Mo. 23; Hoch v. Railway 315 Mo. 1208.

Mark D. Eagleton and Allen, Moser & Marsalek for respondents.

(1) The matters set out in relator's statement, not found in the opinion, cannot be considered in this proceeding. (2) In a proceeding by certiorari to quash an opinion of the Court of Appeals, as contravening the controlling decisions of the Supreme Court, the Supreme Court will go to the opinion of the Court of Appeals for the facts. State ex rel. Realty & Inv. Co. v. Reynolds, 200 S.W. 1039; State ex rel. Biscuit Co. v. Becker, 316 Mo. 865; State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Dowell v. Allen, 250 S.W. 580. (3) On certiorari to quash the opinion of the Court of Appeals, an instruction not set out, discussed or referred to in the opinion of the Court of Appeals, cannot be considered. State ex rel. St. Joseph v. Ellison, 223 S.W. 671; State ex rel. Rys. Co. v. Allen, 240 S.W. 117; State ex rel. Lacke v. Trimble, 298 S.W. 782; State ex rel. Iron Works v. Allen, 289 S.W. 583; State ex rel. Major v. St. Louis Court of Appeals, 310 Mo. 386. (4) On certiorari, it is not the province of the Supreme Court to determine whether the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but only whether, upon those facts, it announced some conclusion of law contrary to the last previous ruling of the Supreme Court on the same or a similar state of facts. State ex rel. Calhoun v. Reynolds, 289 Mo. 506; State ex rel. Investment Co. v. Allen, 294 Mo. 214; State ex rel. Am. Press Co., v. Allen, 256 S.W. 1049; State ex rel. Life Ins. Co. v. Allen, 305 Mo. 607. (5) This court has never held that the question of intrastate or interstate commerce, under facts such as are present in this case, was a question of law. (a) Respondents' ruling that the question, whether plaintiff was engaged in intrastate commerce or in interstate commerce, was one for the jury, is not in conflict with any opinion of this court, for this court has never ruled that upon such facts the question was one of law for the court to decide. State ex rel. Ry. Co. v. Ellison, 204 S.W. 396; State ex rel. Smith v. Reynolds, 216 S.W. 773; State ex rel. Ry. Co. v. Ellison, 224 S.W. 820; State ex rel. Am. Pack. Co. v. Reynolds, 230 S.W. 642. (b) The burden rested upon the relator to prove its contention that plaintiff was engaged in interstate commerce when he was injured. Myers v. Railroad, 296 Mo. 239; Osborn v. Gray, 241 U.S. 16. (c) Where a majority of the court does not concur in an opinion it is not the opinion of the court. State ex rel. Hopkins v. Daues, 6 S.W.2d 898. (d) An unnecessary holding by this court in an opinion is not a basis for the issuance of a writ of certiorari on the ground of conflict. State ex rel. Globe-Democrat v. Gehner, 316 Mo. 694. (6) The ruling of the Court of Appeals, that it was a question for the jury whether plaintiff was engaged in intrastate or interstate commerce, is in accord with the prior decisions of this court and with the rule as generally understood and applied. Williams v. Schaff, 282 Mo. 497; Brock v. Ry. Co., 305 Mo. 502; Fenstermacher v. Railroad, 309 Mo. 475; Minneapolis & St. L. Railroad Co. v. Winters, 242 U.S. 353, 61 L.Ed. 358; Peterson v. Ry. Co., 229 U.S. 146; Erie Railroad Co. v. Van Buskirk, 1 F.2d 71; Hudson & M. Railroad Co. v. Iorio, 239 F. 855; Philadelphia, etc., Railroad Co. v. McConnell, 228 F. 263; Ill. Cen. Railroad Co. v. Kelly, 176 Ky. 745; Perez v. Railroad Co., 52 Utah 286; Cincinnati, etc., Railroad Co. v. Hansford, 173 Ky. 126.

Cooley, C. Davis, C., absent; Westhues, C., concurs.

OPINION

COOLEY

Certiorari to the St. Louis Court of Appeals brought by relator to quash the opinion of respondents, judges of said court, in a certain cause in which Robert William Seidel was plaintiff and relator herein was defendant. Plaintiff Seidel obtained judgment against defendant railway company for $ 7500, which the court of appeals affirmed. Relator seeks to quash respondents' opinion on the ground that it is in conflict with certain decisions of this court in failing to hold that upon the facts stated plaintiff was, as a matter of law, engaged in interstate commerce, in which event he could not recover under the pleadings. The opinion of the court of appeals is reported in Seidel v. St. L.-S. F. Ry. Co., 18 S.W. (2d) 126. We set out the parts thereof that present the question to be determined.

"This is an action for damages for personal injuries sustained by plaintiff on August 23, 1926. Plaintiff was employed by defendant and was working near its station in St. Louis County, Missouri.

"At the time plaintiff received his injuries, he was engaged in disconnecting old rails which had come out of defendant's main-line track. From plaintiff's evidence it appears that defendant had furnished him a chisel for doing this work which was defective, and that when he struck this chisel with a spike maul a piece of metal from the chisel flew up and struck him in the eye, causing him to lose the sight thereof. He recovered judgment for $ 7,500, and defendant appealed.

"Plaintiff tried his case below upon the theory that he was engaged in intrastate commerce, while the defendant insists, and insisted in the court below, that he was engaged in interstate commerce.

"It is unnecessary to refer particularly to the pleadings, because they are not in question on this appeal. Defendant insists that the evidence shows conclusively that plaintiff was engaged in interstate commerce, while plaintiff insists that it was a question for the jury, and that there being substantial evidence to support the finding of the jury upon this issue, the judgment should be affirmed.

"The evidence as offered on the part of the plaintiff, with respect to the nature and character of the work he was doing, is that these rails upon which he was working had been removed from defendant's main-line track . . . These rails were removed from the main-line track and placed by the side thereof, about six or eight feet away. Plaintiff was disconnecting these old rails at the time he received his injury. The usual method of disconnecting these old rails after they had been removed from the main-line track was for one employee to hold the chisel against the bolt or metal piece sought to be disconnected, while another employee would strike the chisel with a maul. It was while so engaged that plaintiff was injured. Plaintiff said he had nothing whatever to do with removing the rails from the roadbed, and that the work in which he was engaged did not interfere in any way with the movement of the trains over defendant's main-line tracks. These old rails on which he was at work were on defendant's right of way. When these old rails would be removed from the track and placed upon the right of way they would be left connected until later, at which time they would be disconnected and removed from the right of way.

"It is a conceded fact that the defendant is a railroad company engaged in interstate commerce. Defendant's evidence discloses that they were removing the old rails from the track and replacing them with heavier rails; that at the time of the accident plaintiff was working on defendant's main-line right of way on these old rails which had been removed from the track, and that these old rails would be cleaned up and removed from the right of way as a last step in the process of the installation of the heavier rail, and that when these old rails were disconnected the work train would come along and take them away."

Respondents then referred to Pedersen v. Delaware, Lackawanna & Western Railroad Co., 229 U.S. 146, cited by defendant, and said:

"The facts in that case are entirely different from the case at bar. So far as the plaintiff's evidence discloses, he was not engaged in any manner in connection with interstate commerce. There is nothing to show that the old rails were to be replaced in the main-line track or removed to some other State. There is also nothing to show that these rails or the work in which plaintiff was engaged interfered in the least with the operation of defendant's trains. There is also nothing to show that plaintiff had anything to do with removing the rails from the main-line track, or did any work in connection with replacing the old rails with the new. Therefore, to say the least, it was a jury question as to whether or not plaintiff at the time he received his injury was engaged in intrastate commerce or interstate commerce. [Hudson & M. R. Co. v. Iorio, 239 F. 855; Fenstermacher v. R. I. Ry. Co., 309 Mo. 475, 274 S.W. 718.]"

Relator contends that upon the facts stated plaintiff was as a matter of...