Williams v. Schaff
| Decision Date | 02 June 1920 |
| Parties | JAMES A. WILLIAMS v. CHARLES E. SCHAFF, Receiver of Missouri, Kansas & Texas Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Hopkins B. Shain, Judge.
Reversed and remanded.
J. W Jamison, Montgomery & Montgomery and Carl S. Hoffman for appellant.
(1) In beginning the work of constructing a new semaphore that had not been used and was not being used, and in no event could be used until completed, plaintiff was not engaged in interstate commerce. Bravis v. Milwaukee Railroad, 133 C. C. A. 228; Raymond v. Milwaukee Railroad, 147 C. C. A. 245, 243 U.S. 43; New York Central Railroad v White, 243 U.S. 188; C. & E. Railroad v Steele, 108 N.E. 4; McKee v. Elec. Ry. Co., 88 S.E. 616; Pedersen v. Del., Lack & W. Railroad, 229 U.S. 146. (2) At the time of the injury the relation of employer and employee did not exist. (a) Plaintiff was not at the time engaged in the business for which he was employed, but was on an enterprise of his own. Under his contract of employment he was to board and lodge himself, and was free to secure same where he pleased. He was employed to assist in erecting a semaphore at Savannah. (b) Hughes was not acting within even the apparent scope of his employment. He, too, went away from his place of employment on a private enterprise in no way connected with the work for which he was employed. No directions given by Hughes under such circumstances can be imputed to the defendant. Russell v. Ry., 83 C. C. A. 618; Ellsworth v. Metheney, 104 F. 119; Ill. Cent. Railroad v. Archer, 74 So. 135; Excelsior Products Mfg. Co. v. Railroad, 263 Mo. 142; O'Brien v. Western Steel Co., 100 Mo. 182. (3) The petition bases a right of recovery on the allegation that appellant had furnished a pass to Hughes, which permitted Hughes and the respondent to ride on any train designated by the said Hughes. Instruction 2 submitted to the jury the question as to whether or not, under all the evidence, Hughes had either actual or apparent authority to direct respondent to board the train in question. This instruction was a departure from the petition, and it was error to give it. Black v. Met. St. Ry. Co., 217 Mo. 672; Beave v. St. Louis Transit Co., 212 Mo. 331; Ely v. Ry. Co., 77 Mo. 34. Plaintiff is bound by the specifications of negligence in his petition. Strode v. Columbia Box Co., 250 Mo. 695. The instruction enlarged upon the proper scope of the petition, and authorized a verdict for plaintiff on an act of negligence not pleaded. Georgia v. St. Ry. Co., 164 Mo.App. 121; Silverthorn v. Lumber Co., 190 Mo.App. 716; Hufft v. Railroad, 222 Mo. 286. Said instruction constituted a departure for the further reason that it was specifically alleged in the petition that the pass that Hughes carried authorized him to designate trains for plaintiff to board; whereas, the instruction, without regard to the terms of the pass, authorized a finding for plaintiff, provided Hughes had been accustomed to board freight trains while carrying a pass. It was not alleged in the petition that Hughes had been accustomed to ride freight trains by authority of the pass. (4) For the same reasons, and upon the same grounds, plaintiff's instruction 1 was erroneous in submitting to the jury the question as to whether Hughes had authority to direct the movements of the plaintiff in and about his work "and going to and from such work." The petition did not allege that defendant had conferred authority on Hughes to direct the movements of plaintiff in going to and from his work.
Claude Wilkerson, Paul Barnett and F. P. Sizer for respondent.
(1) It is contended by appellant that, as the semaphore that plaintiff was engaged in erecting was not being used and could not be used until completed, therefore plaintiff was not engaged in interstate commerce. As this semaphore was only a link in a chain of semaphores that had been in use and was to take the place of the old one just as soon as it could be installed, plaintiff was necessarily directly engaged in the interstate commerce in which the defendant was engaged, and therefore the case is governed by the Federal Employer's Liability Act. Grow v. Ore. Railroad, 138 P. 398, 150 P. 970; Coal Co. v. Deal, 145 C. C. A. 490, 231 F. 604, 245 U.S. 681; Central Railroad Co. v. Colasurdo, 192 F. 901; Saunders v. Southern Railroad, 167 N.C. 375; Law v. I. C. Railroad Co., 208 F. 869; Lamphere v. Ore. Nav. Co., 196 F. 336; Atlantic Coast Line v. Tomlinson, 94 S.E. 909; Dowell v. Wabash Railroad, 190 S.W. 939; Glunt v. Penn. Railroad, 95 A. 109; Davis v. Railroad, 134 Minn. 49; Salabrin v. Ann Arbor Railroad, 194 Mich. 458; Pederson v. Del. Lack. & W. Railroad, 229 U.S. 146. (2) The relation of employer and employee did exist. Plaintiff was not off on a private affair of his own. The evidence is undisputed that plaintiff was paid for the one hour which he spent while waiting at the depot to go to his work at Savannah. Whatever Hughes and plaintiff did in hunting and looking for room and eating accommodations at McAlester, plaintiff's evidence is undisputed that he did go to work and reported for work at the depot at seven o'clock, and it was during this hour that he was hurt, after he had reported for duty. 26 Cyc. 1086-87; Dumphy v. Norfolk & Western Railroad, 95 S.E. 863; Railroad v. Zachary, 58 L.Ed. (U.S.) 596; Thomas v. Railroad, 122 N.W. 456; Hartman v. Toyo Kisen Co., 244 F. 567; Rideout v. Pillsbury, 173 Cal. 132; Brownell Imp. Co. v. Sweeney, 223 F. 510; Beck v. Railroad, 59 S.E. 1015. The relation exists when the servant goes upon the master's premises a reasonable time before working hours, and remains until he leaves the premises a reasonable time after working hours, and exists while the servant is resting or in necessary inactivity. Chambers v. Mfg. Co., 14 L. R. A. (N. S.) 383; Light Co. v. Sawyer, 47 So. 67; Railroad Co. v. Brock, 49 So. 453; Lumber Co. v. Smith, 95 S.W. 800; Niece v. Creamery Co. 133 N.W. 878; Jacobson v. Mill Co., 119 N.W. 510; Chicago Rock Island & Pac. v. Smith, 172 S.W. 829. In determining whether or not the relation of master and servant exists, the manner of payment is a circumstance to be considered. Corbin v. Am. Mills, 27 Conn. 274; Tenn. Coal Railroad v. Hayes, 97 Ala. 201; Railroad v. Timmins, 100 S.W. 337. (3) Hughes, as well as Williams, had reported for work at seven o'clock, and his duties as employee or foreman had commenced when he gave Williams the negligent order; and, even though it might be held that Hughes and plaintiff were on a private enterprise in looking for a boarding place and lodging, yet, they had returned to the depot and were on duty at seven o'clock, before the order was given. The authority to give the order to board the train was vested in Hughes, by putting the transportation for both men in his exclusive possession. Stool v. So. Pac. Railroad, 172 P. 101; 26 Cyc. 1163; Covington v. Sewell, 76 So. 318. Plaintiff's Instruction 2 was a departure from the petition. While the petition does state that Hughes was furnished a pass which "permitted" Hughes and Williams to ride on "any train designated by the said Hughes," yet the evidence fully justified the allegation, because he was permitted to ride on each train to which he presented the pass. (4) Plaintiff introduced evidence showing that Hughes had the authority to act. Defendant's evidence tended to prove a secret restriction upon Hughes' authority, so far as boarding certain freight trains was concerned, which secret authority was not known either to Hughes or to plaintiff. In other words, defendant offered to disprove the authority that Hughes had to select certain trains to ride upon, by introducing evidence to support the defense of ultra vires, In this class of cases the plea of ultra vires is a special defense and not available under the general denial. 10 Cyc. 1156; Hicks v. Nat. Surety Co., 169 Mo.App. 492; Williams v. Verity, 98 Mo.App. 660; Lumber Co. v. Beekman Lumber Co., 153 Mo.App. 386. Berberet v. Myers, 240 Mo. 58. (5) Instruction 2 was not broader than the petition, but was narrower than the petition. The petition alleged authority, and the instruction required the jury to believe there was at least apparent anthority. It is not a variance to allege a negligent order given by one in authority, and prove a negligent order given with apparent authority. Oriental v. Barclay, 41 S.W. 117. Even if there was a variance, it was immaterial. Cameron v. Roth, 108 Mo.App. 265; Carson v. Quinn, 127 Mo.App. 525; Gardner v. St. L. Ry. Co., 167 Mo.App. 610.
This plaintiff, in an attempt to get on a freight train of the defendant company, fell under the wheels, and his left arm and left leg were so badly mangled it was necessary to amputate them. The accident occurred Feb. 19 1917, at the station of McAlester in the State of Oklahoma. Only six days before, plaintiff had taken employment from the company as a common laborer in the bridge construction and repair department; but he had been in the service of the company previously for three or four months in the same department. The local headquarters of the department were at Muskogee, Oklahoma, a town and station on defendant's railway fifty miles north of McAlester, and where the foreman of the bridge department hired plaintiff. Eight or ten miles south of McAlester is the station of Savannah, and to this station plaintiff, on February, 18, 1917, was ordered by the general foreman of the department to go, with a carpenter by the name of Hughes, to help Hughes in the construction of a semaphore; a device used by the railway company to signal trains. ...
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