Taylor v. Lumaghi Coal Co.

• Decision Date: 05 June 1944
• Docket Number: No. 38756.,38756.
• Citation: 181 S.W.2d 536
• Parties: JOHN M. TAYLOR v. LUMAGHI COAL COMPANY, Appellant.
• Court: Missouri Supreme Court

181 S.W.2d 536

JOHN M. TAYLOR v. LUMAGHI COAL COMPANY, Appellant.

No. 38756.

Supreme Court of Missouri.

Division One, June 5, 1944.

Rehearing Denied, July 3, 1944.

Appeal from Circuit Court of City of St. Louis. — Hon. James F. Nangle, Judge.

AFFIRMED (subject to remittitur).

Moser, Marsalek & Dearing for appellant.

(1) Plaintiff, his employer, the Pennsylvania Railroad Company, and the defendant were all under the Illinois Workmen's Compensation Act. The sole right of recovery for plaintiff's injury was, by said Compensation Act, vested in his employer, and the damages were limited to the compensation payable under the act. Illinois Workmen's Compensation Act, Secs. 3, 6, 29 (Illinois Revised Statutes 1941, Chapter 48, Secs. 139, 143, 166); Thomson v. Industrial Comm., 380 Ill. 386, 44 N.E. (2d) 19, certiorari denied, 318 U.S. 755, 63 S. Ct. 529, 87 L. Ed. 462; McNaught v. Hines, Dir. Gen., 300 Ill. 167, 133 N.E. 53; O'Brien v. Chicago, C.R. Co., 305 Ill. 244, 137 N.E. 214. (2) Plaintiff's employer, the Pennsylvania Railroad Company, and the defendant were automatically bound by the Illinois Workmen's Compensation Act by reason of their engagements respectively in the business of carriage and mining. Illinois Workmen's Compensation Act, Sec. 3 (Sec. 139, Ill. Rev. Stat. 1941). (3) The court is required to take judicial notice of the Illinois Workmen's Compensation Act, which is pleaded in the defendant's answer, and of the decisions of the State of Illinois construing the act. Sec. 958, R.S. 1939; Ramey v. Mo. Pac. R. Co., 323 Mo. 662, 21 S.W. (2d) 873. (4) The right of recovery for plaintiff's injury, and the restrictions imposed thereon, are measured by the law of the State of Illinois, where the accident occurred, as such law is construed by the courts of last resort of that State. Byram v. East St. L.R. Co., 39 S.W. (2d) 376; Woodward v. Bush, 282 Mo. 163, 220 S.W. 839; Sing v. St. L.-S.F.R. Co., 30 S.W. (2d) 37; Jackson v. St. L.-S.F.R. Co., 31 S.W. (2d) 250; Cathcart v. Robinson, 5 Pet. 264, 8 L. Ed. 120; McMerty v. Morrison, 62 Mo. 140; Secs. 856, 857, R.S. 1939. (5) At the time of plaintiff's injury, and for some three hours theretofore while in defendant's yards, plaintiff and the crew of which he was a member were exclusively engaged in work which was an integral part of the defendant's mining operations there carried on, to wit, the movement of cars from place to place in defendant's yards, in the course of the continuous use of said cars in defendant's yards. The crew brought no cars into the yards and took none away. There was no evidence that any of the coal mined by defendant at any time entered into interstate commerce or was shipped outside of the State of Illinois. Under such circumstances no part of the plaintiff's duties at the time of his injury was in interstate commerce or in furtherance of such commerce, nor did his work affect such commerce in any manner. Chicago J.R. Co. v. Industrial Board, 277 Ill. 512, 115 N.E. 647; Lavigne v. C.M. & St. P.R. Co., 287 Ill. App. 253, 4 N.E. (2d) 785, certiorari denied, 302 U.S. 688; Siegel v. M.K. & T.R. Co., 342 Mo. 1130, 119 S.W. (2d) 376, certiorari denied, 305 U.S. 654; Phillips v. Union T.R. Co., 328 Mo. 240, 40 S.W. (2d) 1046, certiorari denied, 284 U.S. 660; McNatt v. Wabash R. Co., 335 Mo. 999, 74 S.W. (2d) 625. (6) In amending the Federal Employers' Liability Act in 1939 Congress retained in the act the requirement that it applied to an employee only "while he is employed in such (interstate) commerce." The apparent purpose of the amendment was not to abandon this requirement, but to broaden the type of interstate duties to which the law was applicable from duties directly in interstate transportation, or practically a part thereof, to duties which furthered interstate commerce or affected it directly or substantially. Federal Employers' Liability Act, 45 U.S.C.A. 51. (7) It is well recognized that the expressions used in the 1939 amendment have a different and more inclusive significance than the formula theretofore applied by the courts, "engaged in interstate commerce or in work so closely related to it as to be practically a part thereof." Overstreet v. North Shore Corp., 318 U.S. 125, 87 L. Ed. 423; McLeod v. Threlkeld, 87 L. Ed. 1154. (8) The court is not at liberty to deny effect to any part of the statute, before or after amendment. The provision that the act applies to an employee only while he is engaged in interstate commerce remains in the act, and cannot be ignored, or destroyed by construction. Ex parte Public Natl. Bank, 278 U.S. 101, 104, 73 L. Ed. 202, 49 S. Ct. 43; Washington Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L. Ed. 782; State ex rel. Dean v. Daues, 321 Mo. 1126, 1151, 14 S.W. (2d) 990; Wilmot v. Mudge, 103 U.S. 217, 220, 26 L. Ed. 536; Yuengling v. Schile, 12 Fed. 97, 106; Smith v. Board of Trustees, 245 Pac. 173, 175; Zelig v. Blue Point Oyster Co., 104 Pac. 193. (9) An amended statute must be read, as to all subsequent occurrences, as if it had originally been enacted in its amended form. United States v. La Franca, 282 U.S. 568, 75 L. Ed. 551, 51 S. Ct. 278; Pennsylvania Co. v. United States, 236 U.S. 351, 362, 59 L. Ed. 616, 35 S. Ct. 370. (10) A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score. United States v. La Franca, supra; United States v. Standard Brewery, 251 U.S. 210, 220, 64 L. Ed. 229, 40 S. Ct. 139; Coal & Coke R. Co. v. Conley, 67 S.E. 613. (11) Whether an employee is governed by the Federal Employers' Liability Act, as amended in 1939, depends upon the nature of his work at the time of his injury, and not upon the work which he usually or generally performs. Thomson v. Industrial Comm., supra; Piggue v. Baldwin, 154 Kan. 707, 121 Pac. (2d) 183; Ermin v. Pennsylvania R. Co., 36 Fed. Supp. 936; Southern Pac. Co. v. Industrial Acc. Comm., 19 Cal. (2d) 271, 120 Pac. (2d) 880. (12) Congress has no power to extend the Federal Employers' Liability Act to cover employees who are not engaged in interstate commerce at the time of the injury. Howard v. Illinois C.R. Co., 207 U.S. 463, 52 L. Ed. 297, 28 S. Ct. 141; Mondau v. New York, N.H. & H.R. Co., 223 U.S. 1, 32 S. Ct. 169, 5 L. Ed. 327; Thomson v. Industrial Comm., 380 Ill. 386, 44 N.E. (2d) 19 certiorari denied, 87 L. Ed. 462, 63 S. Ct. 529. (13) Under the commerce clause of the Constitution the power of Congress extends to intrastate activities only when they in a substantial way interfere with or obstruct the power granted to Congress. It cannot be pushed to such an extreme as to destroy the distinction between interstate and intrastate commerce. Wickard v. Filburn, 87 L. Ed. 57; United States v. Wrightwood Dairy Co., 315 U.S. 110, 86 L. Ed. 726, 62 S. Ct. 523; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 81 L. Ed. 893 57 S. Ct. 615. (14) The court erred in giving plaintiff's Instruction 2. The instruction omits the necessary elements of liability under the theory upon which it is based, in that it does not require the jury to find that the peril or apparent peril, as a result of which plaintiff jumped from the car, was caused by defendant's negligence, nor that the apprehension of peril was reasonable, nor that the appearance of danger was imminent, leaving no time for deliberation. Delfosse v. United Railways Co., 201 S.W. 861; Kleiber v. Peoples R. Co., 107 Mo. 240, 17 S.W. 946; Ephland v. Mo. Pac. R. Co., 137 Mo. 187, 37 S.W. 820; Bischoff v. Peoples Railway Co., 121 Mo. 216, 25 S.W. 908; Carter v. Wells, 40 S.W. (2d) 725. (15) The damages awarded by the jury are grossly excessive. Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W. (2d) 865; Harlan v. Wabash Railroad Co., 335 Mo. 414, 73 S.W. (2d) 749; Cole v. St. L.-S.F.R. Co., 332 Mo. 999, 61 S.W. (2d) 344.

Mark D. Eagleton and William H. Allen for respondent.

(1) The liabilities and obligations of the carrier to make compensation for personal injuries sustained by its employees while employed by it in interstate commerce are regulated both inclusively and exclusively by the Federal Employers' Liability Act, which supersedes and takes the place of all state statutes within its scope and field. The Congress, by the act, has fully covered that entire field, leaving no room for state regulation, even in respect of injuries occurring without fault on the part of the carrier, as to which the act provides no remedy. New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S. Ct. 546, 61 L. Ed. 1045, L.R.A. 1918C, 439, Ann. Cas. 1917D, 1139; Erie R. Co. v. Winfield, 244 U.S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 155, 86 L. Ed. 486; Prader v. Pennsylvania R. Co., 49 N.E. (2d) 387. (2) The Employers' Liability Act, however, deals only with the liability of the carrier in cases coming within its operation. The act does not touch the liability of third persons to the carrier's employees. It does not, in any respect, modify the common-law rights of such employees against third persons. Cott v. Erie R. Co., 231 N.Y. 67, 131 N.E. 737; Lee v. Central Georgia R. Co., 252 U.S. 109, 40 S. Ct. 254, 64 L. Ed. 482; Schosboek v. Chicago, M., St. P. & P.R. Co., 191 Wash. 425, 71 Pac. (2d) 548. (3) Since at the time in question, plaintiff, as an employee of the Pennsylvania Railroad Company, was a member of the operating crew of an interstate train, one containing interstate cars, a part of his duties as such employee was the furtherance of interstate commerce and directly affected such commerce; and he was, therefore, employed by said carrier in interstate commerce within the purview of the Federal Employers' Liability Act as amended by the Act of August 11, 1939, c. 685, sec. 1, 45 U.S.C.A. 51, providing that "any employee of a carrier, any part of whose duties as such employee shall be...