182 Mo. App. 288 | Mo. Ct. App. | 1914
Suit for personal injuries sustained by plaintiff by reason of the negligence of a fellow-servant, both being employees of the defendant railroad and engaged in the same work. The work in which they were engaged was that of repairing a bridge constituting a part of the defendant’s roadbed. The particular instance causing the injury is that, having taken out of the bridge some defective timbers and trucked them down the track a short distance, the plaintiff and this fellow-servant were unloading the same from the truck by hand and in doing so the fellow-servant negligently dropped his end of a large tim
Defendant admits that there is evidence sufficient-to show negligence of the fellow-servant causing plaintiff’s injuries while they were working together for defendant as a common master in the work of repairing this bridge constituting a part of defendant’s roadbed. The plaintiff recovered a verdict for $5000, but as a condition to overruling defendant’s motion for new trial on the ground that the verdict was excessive, the trial court required plaintiff to enter a remitter, which he did, for $1500, and thereupon the judgment was entered against defendant for $3500', and from this judgment defendant perfected and prosecutes this appeal.
The principal error assigned here arises on the court’s overruling defendant’s objection, timely made, to the introduction of any evidence under the petition for the reason that “at the time of the alleged injury to the plaintiff he was engaged in working on an interstate railroad and, therefore, was engaged in interstate commerce, and his cause of action, if any, arises under the Act of Congress known as the ‘Employers’ Liability Act’ and not under the Statute of Missouri, and the petition fails to state facts sufficient to constitute a cause of action under said Act of Congress known as the ‘Employers’ Liability Act.’ ” At the close of the evidence the defendant interposed a demurrer to same, “that under the pleadings and evidence the plaintiff is not entitled to recover and your verdict must be for the defendant.”
Defendant’s position, as we understand it, is that the petition here is essentially bottomed on our State statute making railroads and similar carriers liable for injury to their employees arising from the negligent acts of a coemployee, and that, as defendant’s evidence afterward showed this defendant was at the time
It will be readily noticed that there is no specific statute referred to, either State or Federal, as- the basis of the action, but the pleader, as directed to do under our code, states the facts which he says under the “law of the land” entitles him to a judgment for the injuries received at the hands of a court having jurisdiction to grant such relief. It will not be doubted that the Act of Congress in question is part of the law of the land and is equally so with any State statutes. Defendant’s criticism of the petition is that it does not state either the fact itself, or facts which show, that defendant was at the time engaged in interstate
That the provisions of the Federal Employers ’ Liability .Act are exclusive in all matters pertaining' to defendants’ liability to plaintiff for the injuries inflicted on plaintiff, by it while he was its employee and both were engaged in interstate commerce is -the well-settled law and is so conceded by both parties. [Mondou v. Railroad, 223 U. S. 1, 56 L. Ed. 327, 341; Railroad v. Wulf, 226 U. S. 570, 57 L. Ed. 355; Railroad v. Vreeland, 227 U. S. 59, 57 L. Ed. 417; Rich v. Railroad, 166 Mo. App. 379, 148 S. W. 1011; State v. Railroad, 212 Mo. 658, 680, 111 S. W. 500.]
It is also conceded that the work of repairing defendant’s bridge, constituting as it did a part of defendant’s roadbed, so pertains to its interstate commerce business and the instrumentalities thereof, that the liability for injuries suffered by plaintiff while engaged in said work due to the negligence of his coemployee, is governed exclusively by the Act of Congress
Nor is plaintiff’s right to maintain a suit in the State courts for an injury, the defendant’s liability for which is governed exclusively by the Federal law in question, controverted here. Such Act of Congress so provides and it also provides that State and Federal courts have concurrent jurisdiction in such cases; though when the suit is brought in the State court, matters relating to mere pleadings and practice are governed by the State laws. [Mondou v. Railroad, 223 U. S. 1, 56 L. Ed. 327, 349; McAdow v. Railroad, — Mo. App. -, 164 S. W. 188, 190.]
Suppose then that the State and Federal statutes on this subject of the carrier’s liability to its employees for personal injuries are identical, the one applying exclusively to intrastate and the other to interstate commerce. Would any one in such ease contend that the pleader in stating his cause of action must eo no-mine designate which kind of commerce the action applies to? Such would then be an immaterial fact and could not be an essential allegation. So far as the present suit is concerned the State and Federal laws are the same. Each imposes liability on the defendant under the facts pleaded and proven for the negligent act of a fellow-servant. The evidence which would sustain the cause of action under the one statute, also sustains it under the other. There is no merit whatever in the objection made that the petition does not state facts sufficient to constitute a cause of action under the Federal statute. There are material differences between the Federal and State statutes in some
We can well understand why a court would harken to a defendant in insisting that its liability be no differ-, ent in a case growing out of interstate commerce than that described by the Act of Congress. So a widow was not allowed to recover for the death of her husband under our penal State statute, giving her such right, in a case governed by the Federal law, for the reason that the Federal law, which is paramount, is not thus penal and confines the right of action in such a case to the personal representative of the deceased and hence the plaintiff had no cause of action. [Rich v. Railroad, 166 Mo. App. 379, 388, 390, 148 S. W. 1011.] Such also is the underlying principle of St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 57 L. Ed. 1129, where the court said: “When the evidence was adduced it developed that the real case was not controlled by the State statute, but by the Federal statute. In short, the case pleaded was not proven, and the case proved was not pleaded. . . . Two of the plaintiffs, the father and mother, in whose favor there was a separate recovery, are not even beneficiaries under the Federal statute, there being a surviving widow; and she was not entitled to recover in her own name, but only through the deceased’s personal representative, as is shown by the terms of the statute and the decisions before cited.” So also the case of St. Louis, I. M. & S. R. Co. v. Hesterly, 228 U. S. 700, 57 L. Ed. 1031, is a death case where the plaintiff had a cause
In the present case the plaintiff was accorded no right not vouchsafed to hint by the Federal statute. The defendant’s liability was measured by that law as to the facts making it liable, the measure of damages and the persons, suing therefor. It was denied no rights given it under the law it has invoked.
It is said in Missouri, K. & T. R. Co. v. Walf, 226 U. S. 5691, 57 L. Ed. 255, 263, that: “Therefore the pleader was not required to refer to the Federal act, and the reference actually made to the Kansas statute no more vitiated the pleading than a reference to any other repealed statute would have done.” And the court there further held that in a suit for injuries resulting in death, commenced by the beneficiary under a State law and based thereon, the complaint could be so amended to permit such person to sue as personal representative under the Federal statute.
As a matter of practice pertaining to the courts of this State, -the method of testing the sufficiency of the petition by objecting to the introduction of evidence thereunder is in disfavor and confined to narrow limits. That method is not sufficient to raise an objection which must be supported by- evidence to be introduced later. A motion to make the petition specific and definite as to the character of defendant’s business would have been appropriate if the defendant had really had any defense to interpose based on the disclosure that the case was governed by the Federal Employers’ Liability Act. [Ice & Cold Storage Co. v. Kuhlmann, 238 Mo. 685, 142 S. W. 253; Alter v. Frick, 62 Mo. App. 453; Patterson v. Traction Co., 178 Mo. App. 250, 163 S. W. 955.] After the defendant has proceeded to trial on its answer and been allowed to prove the facts which make the case governed by the Federal statute and having been accorded all the rights and defenses coining to it under that act7
We have noted the assignment of error that the verdict is still excessive, but it is not seriously urged that this case falls within the limited powers given to us in that respect.
The judgment will therefore be affirmed.