Taylor v. Wells Fargo & Co.
| Decision Date | 28 February 1918 |
| Docket Number | 3102. |
| Citation | 249 F. 109 |
| Parties | TAYLOR v. WELLS FARGO & CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rehearing Denied April 15, 1918.
Thomas Fite Paine, of Aberdeen, Miss. (Paine & Paine, of Aberdeen Miss., on the brief), for appellant.
E. O Sykes, of Jackson, Miss. (E. O. & J. A. Sykes, of Aberdeen Miss., and Branch P. Kerfoot, of New York City, on the brief), for appellee.
Before WALKER and BATTS, Circuit Judges, and EVANS, District Judge.
A contract between the St. Louis & San Francisco Railroad Company and Wells Fargo & Co., providing for the operations of the express company over the lines of the railroad company, contained a provision to this effect:
The express company agrees 'that it will and does hereby assume all risk and damage to its agents and employes while engaged in its business on any of the railways or property of the railroad company, and hereby agrees to indemnify and hold harmless the St. Louis & San Francisco Railroad Company on account for all claims for damages suffered by the agents and employes of the express company, while engaged in its business on any of the railways or property of the Railroad Company.'
An instrument introduced in evidence, marked 'Messengers' Agreement,' and reciting that it was an agreement between Wells Fargo & Co. and Taylor, the plaintiff in error, but signed alone by the latter, contains a provision to the effect:
'That neither the party of the first part (Wells Fargo & Co.) nor any railroad or steamboat company, or other carrier, on whose lines said party of the second part may travel as such messenger or guard, shall, under any circumstances, or in any case whatever, be liable for any injury occurring to said party of the second part, while so traveling, whether such injury arises from any fault, carelessness, or negligence, gross or otherwise, on the part of said railroad or steamboat company, or other carrier, its agents or servants; it being the intent of this contract that said party of the second part shall and will assume all and every risk incident to said employment, from whatever cause arising.'
Taylor, having been injured while discharging his duties as an express messenger, in an accident on the St. Louis & San Francisco Railroad, instituted suit against the railroad company in a state court of Mississippi. The express company filed a petition in that court, setting out the contracts, and asked to be made a party defendant, in order that it might remove the case to the federal court. The prayer of the petition was refused. It thereupon instituted a suit against appellant in the District Court of the United States, setting up the facts with reference to the agreements, and other facts, and, in addition to the prayer for general relief, asked for a temporary injunction, which was refused. The case in the state court proceeded to trial, resulting in a judgment for $4,000 for the plaintiff, which was affirmed by the Supreme Court of that state. Upon trial of the suit instituted by the express company a judgment was rendered for the company. An appeal to this court resulted in a reversal; the judgment being based upon the insufficiency of the pleadings. 220 F. 796, 136 C.C.A. 402. The bill was amended, and, upon a new trial, judgment was again for the express company, and the collection of the judgment rendered in the state court was enjoined. From that judgment this appeal is taken.
Appellant contends that the former judgment in this court was final, and that this court, not having permitted an amendment, the bill could not be amended below; that the suit was in violation of section 720 of the Revised Statutes (Comp. St. 1916, Sec. 1242); that the contracts between the express company and the express messenger, and between the express company and the railroad company, whereby the railroad company was to be relieved from the effect of negligence, were void; and that, by virtue of section 5 of the second Employers' Liability Act (35 Stat. 65, c. 149), and the amendment of April 5, 1910 (36 Stat. 291, c. 143), the contract between the express company and the appellant is void. If the last-mentioned contention of appellant is meritorious, it will not be necessary to consider the other questions.
The Employers' Liability Act provides:
'Every common carrier by railroad while engaging in commerce between any of the several states, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce. * * * ' Section 1.
Section 5 provides that:
'Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void.'
If the terms of the act apply to express companies, the contract between Wells Fargo & Co. and the messenger is void. Second Employers' Liability Cases, 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N.S.) 44; Phila., Balt. & Wash. R.R. v. Schubert, 224 U.S. 603, 32 Sup.Ct. 589, 56 L.Ed. 911.
An express company is a common carrier. Bank of Kentucky v. Adams Express Co., 93 U.S. 174, 23 L.Ed. 872. An express company is a common carrier by railroad. If this fact were not universally known, it would be sufficiently indicated by the contract between the appellee and the St. Louis & San Francisco Railroad Company. It is not seen how an insistence to the contrary can be made. Indeed, there is no contention that the express company is not a common carrier by railroad; but the proposition is that, notwithstanding the language, the act does not apply to express companies. The argument seems to be based upon rulings to the effect that the original Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379) was not applicable to express companies, and upon the case of Robinson v. B. & O.R.R. Co., 237 U.S. 84, 35 Sup.Ct. 491, 59 L.Ed. 849, which holds that an employe of the Pullman Company is not an employe of the railroad company.
The Interstate Commerce Commission, in the Matter of the Express Cos., 1 Interst.Com.Com'n R. 349, held that the original Interstate Commerce Act was not intended to apply to express companies. The language of that act was to the effect:
The proposition which seems to have been most meritorious in reaching the conclusion was:
'That the details of the...
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