Western & A. R. R v. Meister, (No. 18222.)

• Citation: 37 Ga.App. 570,140 S.E. 905
• Decision Date: 17 December 1927
• Docket Number: (No. 18222.)
• Parties: WESTERN & A. R. R. v. MEISTER.
• Court: United States Court of Appeals (Georgia)

37 Ga.App. 570

140 S.E. 905

WESTERN & A. R. R.

v.MEISTER.

(No. 18222.)

Court of Appeals of Georgia,

Division No. 2.

Dec. 17, 1927.

(Syllabus by the Court.)

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by J. R. Meister against the Western & Atlantic Railroad. Judgment for plaintiff, and defendant brings error. Affirmed.

Tye, Peeples & Tye, of Atlanta, for plaintiff in error.

Clarke & Clarke, of Atlanta, for defendant in error.

BELL, J. J. R. Meister brought suit under the Federal Employers' Liability Act of April 22, 1908 (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665), against the Western & Atlantic Railroad to recover for injuries received by him while employed by the defendant as a switchman; both he and his employer being engaged at the time in interstate commerce. In his petition he alleged that his duties required him to ride upon freight cars, and, while so doing, to put on and take off brakes, and that on a certain occasion it became necessary for him to go upon and apply the brakes of one of a train of freight cars which were being moved on tracks in the city of Atlanta, and that, "while applying the brakes to lessen the speed of said freight cars, the brake chain which connects with brake staff where your petitioner had his hands, applying said brakes, the chains which connect the brake rod and the brake staff, was loose and disconnected, which caused your petitioner, while applying the brakes, to lose his balance, there being no resistance when he undertook to apply the brakes, but a giving way of the brake staff, which threw your petitioner from the top of said box car to the ground below, and permanently injuring him." Paragraph 10 of the petition was as follows:

"Your petitioner brings this suit under what is known as the Safety Appliance Act and amendments of 1903 thereto, a part of the Federal Employers' Act passed by Congress and made a federal law for employees who are injured under the facts and circumstances on this case."

The defendant made answer, and went to trial upon the merits without demurring or otherwise challenging the petition. The jury returned a verdict in favor of the plaintiff for $6,500, after which the defendant made a motion for a new trial, which motion the court refused, and the defendant excepted.

1. For brevity and convenience, we will refer to the parties according to their position in the court below. In various separate assignments in its motion for a new trial, the defendant excepted to the verdict and to a number of excerpts from the charge of the court, and also to the refusal of a request to charge, upon the common ground that the plaintiff expressly limited his right of recovery to an alleged violation of the Safety Appliance Act of 1893, as amended by the Act of 1903 (45 USCA § 1 et seq.; U. S. Comp. St. § 8605 et seq.), and that, inasmuch as the only pertinent safety appliance statute is the Act of April 14, 1910 (45 USCA § 11 et seq.; U. S. Comp. St. § 8617 et seq.), which provides that all cars must be equipped with "efficient hand brakes, " and which was not alleged to have been violated, the plaintiff should not have recovered, and the court should not have submitted any question of whether there was a violation of this act. The defendant's generalcontention in this aspect of the case may be best illustrated by stating the substance of ground 2, which is typical of other grounds, of the motion for a new trial. The defendant, in that ground of the motion, assigned error upon the following charge:

"In this case there is no contention but that the Safety Appliance Act of Congress is applicable. It is not denied by the defendant, but the defendant does deny any liability to the plaintiff. The Safety Appliance Act says that all cars must be equipped with appliances provided for in the act, and, so far as applicable to this case, the law required of the defendant that the car in question must be equipped with efficient hand brakes, that is, workable hand brakes."

The exceptions to this charge are: (1) That the petition contained no allegation of a violation of the act of 1910, and made no reference whatever to the provision thereof that all cars should be equipped with efficient hand brakes; and (2) the statement in the charge, "there is no contention but that the Safety Appliance Act of Congress is applicable, '' was erroneous and misleading, because the defendant did contend that the provision of the statute mentioned, which was treated by the court as being "the Safety Appliance Act of Congress, " was not applicable, since "it had not been pleaded by the plaintiff nor any violation of any provision thereof been alleged." The defendant's position, as we understand it, is not that the plaintiff failed to allege or prove facts warranting the inference that the act of 1910 was not complied with, but that the petition, in view of paragraph 10, should be construed as eliminating any such question. We cannot agree with this contention. In Gainesville Midland Ry. v. Vandiver, 141 Ga. 350(1), 80 S. E. 997, the Supreme Court said:

"In pleading a cause of action, where a domestic statute or that of the United States is relied on, it is unnecessary to incorporate in the pleadings a statement of the law upon which the cause of action is based. If it is incorporated, the reference thereto may be stricken as surplusage."

Again, in Youmans v. Ga. & Fla. Ry. Co., 142 Ga. 781(1), 83 S. E. 784, it was evident from the allegations of the petition that the pleader contemplated bringing his action under the Civil Code 1910, §§ 2774, 2775, as codified from the act of August 22, 1907 (Ga. L. 1907, p. 84). The Supreme Court held that, if the suit should be treated solely as an action for a breach of the duty specified in these Code sections, it failed to show any right of recovery; but that, since the petition alleged facts sufficient to constitute a cause of action under the common law, as enlarged by statute, the allegations relating to the duty and liability under the Code sections first mentioned would be irrelevant, and would in no way affect the plaintiff's case. In the opinion it was said:

"But the mere fact that the pleader may have referred to those sections [sections 2774, 2775], and have undertaken to hold the company liable under them, would not be cause to dismiss the plaintiff's action, if the petition alleged facts which, under the statutes or common law, would suffice as a basis for an action. In such cases the proper law will be applied to the substance of the allegations, and those allegations which relate only to the inapplicable statutes will be treated as surplusage."

In order for a party in a suit in this state to assert a right under a foreign statute, the statute must be pleaded, but not so when either a local or a federal law is relied on. The courts of this state will take notice, not only of our own laws, but of the acts of Congress as well, and so, in order to claim a right under an act of Congress, it is not necessary that the plaintiff should say that he is suing under the act, nor that he should otherwise mention it. It is sufficient if the facts alleged disclose a cause of action under the provisions of the statute. Thus, in this case, the statement in the petition that the plaintiff is suing under "what is known as the Safety Appliance Act and amendment of 1903" will be disregarded. Stafford v. Norfolk, etc., Co. (D. C.) 202 F. 605; Kelly v. Chesapeake, etc., Co. (D. C.) 201 F. 602; Ullrich v. N. Y., etc., R. Co. (D. C.) 193 F. 768; Rowlands v. Chicago, etc., R. Co., 149 Wis. 51, 135 N. W. 156, Ann. Cas. 1916E, 714; St. Louis, etc., R. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 875.

2. Section 2 of the act of 1910 (45 USCA § 11; U. S. Comp. St. § 8618), so far as it may be applicable to the case under consideration, merely provides that all cars shall be equipped with efficient hand brakes, without any specification as to what would be necessary to constitute a compliance with this requirement. Section 3 (45 USCA § 12; U. S. Comp. St. § 8619) provides as follows:

"That within six months from the passage of this act the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section 2 of this act, * * * and shall give notice of such designation to all common carriers subject to the provisions of this act by such means as the commission may deem proper, and thereafter said number, location, dimensions, and manner of application as designated by said Commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this act, unless changed by an order of said Interstate Commerce Commission, to be made after full hearing and for good cause shown; and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any requirement of this act: provided, that the Interstate Commerce Commission may, upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this section with respect to the equipment of cars actually in service upon the date of the passage of this act, " In ground 6 of the motion for a new trial the defendant contended that the verdict was contrary to law and to the evidence, and was unsupported by the evidence, because there was no evidence as to what requirements had been made by the Interstate Commerce Commission under section 3 as to the "number, dimensions, location, and manner of application of the appliances" required by section 2, and because it was not shown by the evidence what requirement of the Commission as to hand brakes had been violated by the defendant, nor that the Commission had made no requirement in reference to such appliance. In this connection it was insisted that, even if it be proper to treat the case as an action for...