Taylor v. Wells Fargo & Co.

• Decision Date: 08 February 1915
• Docket Number: 2716.
• Citation: 220 F. 796
• Parties: TAYLOR v. WELLS FARGO & CO. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

220 F. 796

TAYLOR v. WELLS FARGO & CO. ^[1]

No. 2716.

United States Court of Appeals, Fifth Circuit.

February 8, 1915

Thomas Fite Paine, of Aberdeen, Miss., for appellant.

E. O Sykes, of Aberdeen, Miss., for appellee.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

WALKER Circuit Judge.

The relief sought by the bill in this case, filed by the appellee, Wells Fargo & Co., a corporation, is an injunction against the enforcement by the appellant of a judgment for damages recovered by him against the St. Louis & San Francisco Railroad Company on account of personal injuries sustained by him in the wreck of a train of that company upon which he was riding while acting as an employe of the appellee. This relief was sought as a means of enforcing the specific performance of a contract whereby the appellant an employe of the appellee, agreed that neither the appellee nor the railroad company upon the line of which he was employed to travel and run as an express messenger of the appellee should under any circumstances, or in any case whatever, be liable for any injuries occurring to him while so traveling, whether such injuries arose from any fault, carelessness, or negligence, gross or otherwise, on the part of said railroad company. The averments of the bill do not, further than is above indicated, show what ground of liability was asserted by the appellant in the suit brought by him against the railroad company, the enforcement of the judgment in which is sought to be enjoined.

The averments of the bill not showing the contrary, it may be presumed that the business in which the appellant was employed and engaged at the time he was injured was one of interstate commerce, carried on by means of the train which was wrecked; that the appellant at that time was, and was acting as, an employe of the railroad company as well as one of the express company, the contract between those two companies, a copy of which is made an exhibit to the bill, expressly providing for the express company having the right to employ the agents and servants of the railroad company as its own agents, when such employment will not, in the opinion of the railroad company, be to the interruption or detriment of its business; and that he was injured in such circumstances as, if the contract relied on does not prevent this result, would render the railroad company liable to him in damages under the Employers' Liability Statute. 35 Stat. 65, Fed. Stat. Ann. (Supp. 1909) 584. It hardly requires a resort to the rule that the averments of a pleading are to be construed most strongly against the pleader to construe the bill as an application to the court so to specifically enforce the contract between the appellant and the appellee as to deny to the former the right of enforcing a judgment recovered by him against a railroad company engaged in interstate commerce for damages from his suffering injury while he was employed by such carrier in such commerce. For such a carrier to be able, by the device of permitting one of its employes to be employed also by an express company, which makes with him such a contract as the one set out in the bill, to exempt itself from the liability created by the statute just referred to, would be in plain contravention of the explicit provision of section 5 of that statute.

There is no suggestion in the bill that there was any occasion for a resort to a court of equity for the enforcement of the specific performance of the contract relied on other than the institution by the appellee of his suit against the railroad company and his recovery of judgment therein. If the liability asserted in that suit was one of the railroad company to its own employe which was provided for by the federal Employers' Liability Act, as, in the absence of averments to the contrary, it may be presumed to have been, the appellee was not entitled to have its contract with the appellant given the effect of exempting the defendant in that judgment from the liability thereby adjudged. The bill, in failing to show that the liability so adjudged was not such a one, failed to show that the appellee was entitled to the relief prayed, whether or not the contract set out was effective to exempt the appellee and the railroad company from a liability for a personal injury suffered by one who was an employe of the former but not of the latter. It follows that the bill is to be regarded as one which fails to show that the plaintiff therein is entitled to the relief prayed, and that the court was in error in the decree rendered thereon.

That decree is reversed, and the cause is remanded; the costs to be taxed against the appellee.

MAXEY District Judge (concurring).

The writer concurs in the conclusion announced in the foregoing opinion of Judge WALKER, but he bases his concurrence on grounds different from those stated. It is admitted by the appellee that, at the time the appellant sustained his injuries, it was engaged in interstate and intrastate commerce as a common carrier. Under the law as it existed prior to the enactment in 1908 of the Employers' Liability Act (35 Stat.c. 149, p. 65), the contracts, relied...