De Vaul v. Southern Kansas State Lines Co.

• Decision Date: 10 November 1939
• Docket Number: 34415.
• Citation: 95 P.2d 541,150 Kan. 641
• Parties: DE VAUL v. SOUTHERN KANSAS STAGE LINES CO. et al.
• Court: Kansas Supreme Court

95 P.2d 541

150 Kan. 641

DE VAUL v. SOUTHERN KANSAS STAGE LINES CO. et al.

No. 34415.

Supreme Court of Kansas

November 10, 1939

Syllabus by the Court.

The Federal Employers' Liability Act, dealing with every common carrier "by railroad" while engaging in commerce between any of the several states or territories, is not applicable to a common carrier by motorbus, and hence widow of motorbus mechanic could not recover for the death of her husband under the Federal Employers' Liability Act instead of under the Workmen's Compensation Act. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.; Gen.St. Kan.1935, 44-501 et seq.

The Federal Motor Carrier Act, whereby the authority of the federal government was extended over the business of motor carriers engaged in interstate commerce, did not have the legal effect of subjecting that business to all the regulations theretofore imposed on railroads engaged in such commerce, such as the Federal Employers' Liability Act. Federal Motor Carrier Act 1935, 49 U.S.C.A. § 301 et seq.; Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

A motor bus mechanic died by asphyxiation of carbon monoxide gas while doing some repair work beneath defendants' interstate motor passenger bus in their repair shop in Wichita. Held, defendants were not engaged in interstate transportation "by railroad", and defendants' liability, if any, was not governed by the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by Iva Merle De Vaul, administratrix of the estate of Oscar B. De Vaul, deceased, against the Southern Kansas Stage Lines Company and the Santa Fe Trail Transportation Company, to recover damages under the Federal Employers' Liability Act for the death of her husband. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment affirmed.

Clarence R. Sowers and Claude E. Sowers, both of Wichita, for appellant.

Bruce Hurd, C. J. Putt, and Robert M. Clark, all of Topeka, for appellees.

DAWSON Chief Justice.

Plaintiff's husband, a motor bus mechanic, died by inhaling carbon monoxide fumes emitted from defendants' interstate motor bus while he was lying beneath the bus and repairing it in defendants' car shop in Wichita.

Instead of making a claim of compensation under the Workmen's Compensation Act, Gen.St.1935, 44-501 et seq., in behalf of herself and children, plaintiff brought this action for damages alleging that defendants were engaged in interstate commerce, to wit, the transportation of passengers and freight in and through the states of Kansas, Missouri Oklahoma, and Colorado; and that they had failed and neglected to equip their repair shop with suitable safety appliances to carry off noxious gases, thereby violating the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and causing the death of plaintiff's husband, and that defendants were consequently liable to her in damages.

The trial court sustained defendants' demurrer to plaintiff's amended petition, and she appeals.

The statute under which plaintiff sought to subject defendants to liability reads, in part, thus:

"Section 51. Every common carrier by railroad while engaging in commerce between any of the several States or Territories *** shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C. A. § 51.

Can it be said that this statute governs the liability of other interstate carriers than railroads? The United States Supreme Court has answered that question in the negative. In Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 35 S.Ct. 491, 494, 59 L.Ed. 849, the plaintiff, an employe of the Pullman Company, sustained injuries while engaged in its service and while defendants' sleeping car was part of an interstate railroad train belonging to and operated by the Baltimore and Ohio Railroad Company. He sought unsuccessfully to subject the railroad company to liability under the statute quoted above. While the courts' chief concern in that case was centered on the contractual relationship of plaintiff and his immediate employer, and between it and the railroad company, in the opinion we find the following significant language: "We are of the opinion that Congress used the words 'employee' and 'employed' in the statute in their natural sense, and intended to describe the conventional relation of employer and employee."

In Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 97, 65 L.Ed. 205, the plaintiff, an employe of an interstate express company, sustained injuries when its express car was derailed while moving as part of an interstate railway train. He sought to subject his employer to liability under the provisions of the Federal Employers' Liability Act. As in the Pullman employe's case cited above, the Supreme Court considered at length the contractual relationship of the express company to the railway company, and of the plaintiff's relationship to each of them. His contention that his employer, the express company, was liable to him under the Federal Employers' Liability Act was not sustained. The Circuit Court of Appeals, 5 Cir., 249 F. 109, had held that the express company was a "common carrier by railroad" within the meaning of the Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65, 45 U.S.C.A. § 51 et seq. The Supreme Court's opinion in part, reads:

"The act provides that 'every common carrier by railroad' shall be liable in damages for the injury or death of any of its employés occurring while it is engaged and he is employed in interstate commerce and resulting in whole or in part from the negligence of any of its officers, agents or employés, or from any defect or insufficiency, due to its negligence, 'in its cars, engines, appliances, machinery, track, roadbed,' etc. *** As respects the express company, it appears not merely that Taylor was in its employ, but also that the injuries were received while it was engaged and he was employed in interstate commerce; and so the question is presented whether the act embraces a common carrier by express which neither owns nor operates a railroad, but uses and pays for railroad transportation in the manner before shown. The District Court answered the question in the negative and the Circuit Court of Appeals in the affirmative. A negative answer also has been given in a like situation by the Court of Errors and Appeals of New Jersey (Higgins v. Erie R. Co., 89 N.J.L. 629, 99 A. 98), and a recent decision by the Supreme Court of Minnesota makes persuasively for that view (State ex rel. Great Northern Express Co. v. District Court, 142 Minn. 410, 172 N.W. 310). *** In our opinion the words 'common carrier by railroad,' as used in the act, mean one who operates a railroad as a means of carrying for the public--that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the mention of cars, engines, track, roadbed and other property pertaining to a going railroad (see Southern Pacific Co. v. Jensen, 244 U.S. 205, 212, 213, 37 S.Ct. 524, 61 L.Ed. 1086, L.R.A. 1918C, 451, Ann. Cas.1917E, 900); by the obvious reference in the latter part of sections 3 and 4 to statutes requiring engines and cars to be equipped with automatic couplers, standard drawbars and other appliances intended to promote the safety of railroad employés (see San Antonio & Aransas Pass Ry. Co. v. Wagner, 241 U.S. 476, 484, 36 S.Ct. 626, 60 L.Ed. 1110); by the use of similar words in closely related acts which apply only to carriers operating railroads (27 Stat. 531, c. 196 [45 U.S.C.A. § 1 et seq.]; 35 Stat. 476, c. 225 [45 U.S.C.A. § 17 et seq.]; 36 Stat. 350, c. 208 [45 U.S.C.A. § 38 et seq.]); and by the fact that similar words in the original Interstate

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