*1 might clearly enough expressed leave is will extrinsic without interpretation. Appellant’s aids in is, trouble not that testator’s clearly tention when he made expressed, the will is not but that appears changed to have intent thereafter. The rule referred perform negligible any, office, to can but a if when invoked to illumin arising ate a condition the words of will long dehors after it Dunlap was written. supra. et al. v. et al., Hart We do not presumption think the indulged can be Karr, Mr. when he made son, 'the'deed to equal his intended children that his should receive portions easily from him. If he did then have such intention he could expressed in the deed or alteration of his will. Wick [See Wickliffe, v. supra.] liffe
In v. Campbell, 556, Philbert 1001, 317 Mo. 296 W. 1003, rule is that will stated in must be and the construed testator’s expressed tention as light therein determined statutes ‘‘ existing at making the time of the of the will and of the the death testator, knowledge presumed the testator must be to have had existing statutory law, light and to have his will in made of, subject to, the existing statutory existing law.” Part of the statutory law ivhen this will was continuously thereafter made providing how, alone, might will The revoked. testa tor presumed must be to have known and doubtless he know did that. courts cannot amake new will for him or part revoke of the one he made nor property contrary can his distribute legally expressed may will accomplish equality in order to and what equity seem to the court his children. We between think the circuit judgment court reached the correct is result its affirmed. West Fitzsimmons, CC., hues and concur. The foregoingopinion by Cooley,
PER CURI A M: C., adopted . opinion judges the court. All concur. St. Paul Chicago, Milwaukee, and Pacific John Milburn Company, Appella (2d)W. 56 S. 80. n t. One, Division December 1932.* April Term, September Opinion 1932; filed *NOTE: 3. motion filed; rehearing motion overruled October for to 1932. motion to transfer filed; Term, en banc motion overruled at court October December *3 Wylder Berger Morrison, Nugent, appellant. <& respondent. Platt Geo. II. Hubbell and Hubbell *5 personal HYDE, C. This is injuries. an action petition here) plaintiff (respondent was in two counts. Respondent al leged he was burned the explosion gasoline which was negligently kept a kerosene barrel. His first count theory defendant, Milwaukee, the Chicago, St. Paul (hereinafter Company Pacific Railroad referred to as the Railroad), injuries for his liable the Federal Employers’ Liability (U. 51-59). Act S. C. A. sec. His second count was upon theory the Railroad injuries was liable for his under the common law *6 Compensa- by Workmen’s changed Iowa Iowa, as the State pay to rejected. It had elected Railroad had Act, which tion law the common injuries employees, under to damages, personal by Act. Compensation modified Iowa, as and statutes and defenses away the commOn-law some of was to take of this effect in cases proof rule to the burden of as to establish a different of their em- arising and in the course out of injuries employees to they counts, alleged in both and same facts were ployment. The respondent concerning whether or not only matters differed as engaged in interstate commerce. by the Mystic, Iowa, employed lived at Respondent, who then gang, repairing main line track Railroad, a member of an its extra through by taking ballast Iowa, the states of and out cinder Missouri track, reballasting raising putting ties, and old in new ties and gravel. good “a and This work made the track deal more solid with high pass speed.” over it at a rate of it was safer for a train gang, over men in who There were worked all the sum- 1928, during they large mer and fall of time covered section line in moved Missouri and into Iowa. The men lived Railroad, being quartered bunk cars furnished about men fifteen explained by general in each car. It was the Railroad’s foreman in “you charge gang of the whole have them in bunk cars get enough work, men to do enough this there is not men in these little towms.” About half of employed nearby the men lived in sections of Missouri and Iowa and the foreman referred to them as “natives.” The Railroad furnished transportation them free to their every Sunday. homes other The rest of the men were itinerant track workers, who did not live in They these states. made their homes permanently in more the bunk cars and were referred to fore- man they as “hoboes.” When left bunk usually ear camp, they go wanted City Chicago Kansas or given and were transporta- there, working tion after two or three months. gang The extra organized groups into three under sub-foremen. Two of groups these together kept together. were and worked group dug One up the and old ballast the other raised the put tracks and tamped in and the new ties. The group third (composed mostly of the so-called “hoboes” who work) followed that usually followed them with their camp separate place at a completed and the work. job Their “was gravel to unload the up level track, up line it it.” dress Respondent was a member of the gang, head as were most of the “natives.” He testified that he employed wras by one of the sub- foremen who told him he would “live at the bunk cars with the gang, kept there there, live because couldn’t keep properly organized without the men did live there” pay “would one dollar day for board and sleep in the bunk cars and do our washing there Respondent re gang.” working in .the borne while it onr make gang commenced for his work. The thirty-five per cents hour ceived were stopped at noon o’clock, morning, at seven
work, in the quit at *7 work at one, back to camp, car went at the bunk fed gang there With days week. the head afternoon, six each in the five the ran on engines, which operated Ford cars, motor were two men, trailers, upon their tools pulled which the track and camp to transported from the bunk car supplies were motor Respondent one these place of their work. took care of any cylinder ears, kept gasoline, and did it with water and oil filled good working Respondent thing necessary keep in else to order. work, went their part work the other men out to did of this before with car, helped when with motor the other but digging ballast, pulling ties, spiking in gang, work of the such as out them, unloading gravel off the work train. Sun- occasionally done on
It was shown there was work to be that day. unloading gravel This where track had been usually was track, continually running raised. over the Interstate trains were during they progress work, in had to slow down cross- ing places completed. In where the work had not been order to warn night, (members trains where to slow at down watchmen gang) places were stationed at these with lanterns. The evidence conflicting kept was to camp, as whether the men were in the on the Sundays they transportation were not furnished home. It reasonably evidence, least inferable, respondent’s appel- that lant did not to camp want men on leave these alternate Sun- days, they without permission, expected stay but that were there subject except to call, that when homes, the work was so near their they working that lose Saturday would no Monday time or trav- eling, willing Sunday, was go every the men to home they if furnished their transportation. own means of Even then some of the said that, men under such circumstances, they had been transportation furnished every week. The Railroad’s evidence was that the anywhere they men were free go chose on that Sunday; necessary it was not they tell their going; foremen were that the Sunday work was entirely voluntary; usually it was known Saturday on night if such done; work was to be fore- arranged men then for men who were to do emergencies it. If arose Sunday on they foremen said would call for volunteers to do the work, and always that there enough were of the men re- ferred to “hoboes,” stayed camp who Sunday, on to do what necessary was to be done. disputed Another matter was concerning what the men required ivere to do keep themselves, their clothes and their bunk cars Respondent’s clean. evidence was that he was told, when he was employed, that to do washing at the bedding Sunday; and that customarily on done camp; that this laundry Sunday. If the on cleaned cars and bunk was aired taken to be respondent, it would according to camp, not done theory respondent’s laundry. It is city sent to a by the men or home result from work lose time men to cause the would that this on camp washing clothes and that delaying track however, shown, It was Sunday expedited. work was the track washed. home to be their clothes the “natives” take some of did requirement no According evidence, there was Railroad’s to the bedding or aired washing to be done or where about when or it. they liked about could do. as cleaned, bunk cars but that the men Boarding Company Olympic The Railroad had a contract with bedding. They charged per $7 the men meals and were furnish on week, went home pay, which was taken out of their whether Sunday their Boarding Company had, in addition to or not. The cooks,’.’ fuel cooks, called “bull who carried water and employees They expected bunk clean keep the cooks. were also cars *8 keep lamps and to the in the bunk with It was cars filled kerosene. shown, however, usually cleaned ears that the “natives” their bunk they kept by respondent because them locked. This was done the other men who lived in ear him. the with respondent
At time injured, camp the was the car on bunk was Blakesburg, Iowa, a small town yards at railroad in the track spur a weeks for two located there had been It population. of about being several miles southwest done was track work the or more and Sunday, Friday morning preceding the when Blakesburg. On other man who cared for the the respondent and injured, was on track car, kept which was the house tool went the car to motor yards from side of the railroad opposite the depot, on back the motor cars. There were get gasoline for the camp, to the bunk car green in which dark barrel kerosene ear, a in the tool barrels two They gasoline. stripe for the gray barrel with a red kept, and a was empty. Respondent he went to the gasoline said barrel found the The gasoline. him that there was no head and told head foreman just yester- ought be; had it filled foreman told him that “there day.” went back and looked at the kerosene barrel he When he said it had not over one-third earlier found it full. He been full that got Respondent from it. week when kerosene and the other motor car contents of poured man some the kerosene barrel -on the ground by lighting and tested it a match and discovered that it was mostly gasoline. says Respondent he went back to that the head gasoline him foreman and told that the was in the kerosene barrel poor place gasoline.” and “it was a them have He said guys go head “well, you get foreman said it today, and use it I will put notify see kerosene the blanket car I will the men about charged. They it.” negligence His used failure do so is the a they in the and made motors and found were harder start again black smoke from On used this Saturday they the exhaust. tests, gaso- same They mixture in the with motor -cars. testified line, trial, and a just kerosene before the two, mixture of made from they said a were sure that contained barrel large mixture of gasoline quantity kero- a small with amount sene. only running cars and the motor gasoline used The Blakesburg. station in Company Oil the Standard from
procured it Boarding Company and it They kerosene for furnished at storehouse Railroad’s in barrels camp to the shipped lamps ears, to fill the bunk used Iowa. It was also Ottumwa, by the men who used ties, in the lanterns burn the old railroad Respondent’s was that night evidence watchmen. duty on were grease wash of their hands and that motor it to off car men used starting stoves; the bunk used it for fires in car all of the men stoves, with kero- in these and fires were started coal burned right way; kindling up along poured picked sene on to the barrel and carried kerosene to the had access kerosene men filling fires; lamps starting doing bunk cars for and that so occupied by they passed foremen, by the bunk car which was on string spur the north end of the of bunk cars on the track and was place kept. first car from the where the southwest tool car was tool car left all camp unlocked time located Blakesburg. There had been lock on car at one time but it Sunday, was broken. 7th, respondent On October camp remained in noon and decided to wash his put kindling about clothes. He in the stove, bunk car put his clothes a can of stove, water on the *9 picked up in kept the can which the kerosene 'was empty. but found it rang then Just the dinner bell and he went to dinner. Two other men who lived in bunk car picked up empty his the water bucket and depot. kerosene can and went to the of night- One these men was a watchman who used fill kerosene to his They lantern. had eaten a late Blakesburg breakfast so go did not They dinner. said that the foreman had never warned the members of gang, the and know, did not gasoline that there was in the kerosene barrel. They filled can the from the kerosene barrel. respondent When came' back dinner, picked he said up the can, kerosene “poured a kindling on the little and reached over and struck a match and threw it in the exploded.” stove and it The contents of caught the can fire respondent’s legs and severely were very burned. The Railroad filed a require plaintiff motion to to eleet whether he would stand on the count based on the Employers’ Federal Lia- bility Act upon or that based the Iowa law. This motion was over-
1181 con- which an answer then filed and court ruled the the and negligence contributory pleas general of denial and sisted of a action. of misjoinder of causes pled assumption risk. It also of judgment from the respondent $12,000, jury for- found appealed. upon this verdict Railroad has entered court erred Appellant’s assignment first of error is that evidence; contends Appellant sustaining not to the its demurrer inter- injury engaged in respondent was not at the time of his that Liability Act Employers’ F'ederal state commerce therefore the injury, ivas, respondent time of the inapplicable; at the scope engaged personal acting within the affairs, in his own and not employment of his not be liable and therefore could law; failed to or the evidence either Federal State negligence part appellant. -the show of actionable determining respondent In whether can under the recover Act, guided by interpretation must act we of that Supreme Court of the United States. Even the decisions of court have not been but clarified uniform its most recent eases have by reaffirming the matter applicability the rule that criterion “the of employee’s occupation statute is injury at the time of transportation closely in interstate or so related thereto as to be practically part. (Italics ours.) it.” Haven York, New [New & Hartford Railroad Co. v. 284 Bezue, 415, U. 52 Sup. S. 76 Ct. L. Ed. 258, 77 A. Chicago L. R. Ill. Eastern Railroad Co. v. & Commission, Industrial 284 S. Sup. U. L. Ed. Ct. 151; Chicago & Bolle, Northwestern Co. v. L. U. Ed. 173, 52 Sup. Ct. In these cases expressly the court over 59.] ruled former in which this decisions test not followed because of “the words inadvertently ‘interstate commerce’ being substituted ” for the words ‘interstate transportation.’ In the Bolle the court case said: regarded interchangeable, as but were not as words
“The two meanings. Commerce conveying covers whole field different part; only sig- word of transportation is narrower understandingly deliberately ap- was chosen nification aof carry The business railroad is propriate term. on com- engaged transportation generally. It is persons merce commerce; things in and hence the test whether employee engaged injury the time interstate commerce, within naturally meaning act, must be whether he was transportation closely in interstate or work so related to such *10 pari transportation practically (Italics to a ours.) be it.” of must, therefore, We precedents examine the with this distinc- Respondent any tion here was not at directly mind. time en- gaged transportation question in interstate and the therefore is: closely related engaged in work so be, injury, at of bis Was the time There transportation it? practically part of to interstate as to be tracks, formerly repairing as to the work of was some doubt whether C. L. R. passed, which was such work. over interstate trains [18 by question, Pedersen v. 85, however, This was settled sec. 315.] 146, 57 Co., 229 Delaware, & U. Lackawanna Western Railroad Sup. 153, where it was 1914C, L. Ed. Ct. Ann. Cas. bridge repair injured while gang a a was held that member of who trains, carrying repair bridge, of used interstate by bolts a Act holding within Federal court, was the Federal Act. The bridge applicable, necessary repair “It was that said: hand, taking the materials there was a be the act them part of that which was words, work. In other it was a minor task essentially larger part a of the one.” Washington
In Philadelphia, Smith, Baltimore & Railroad Co. v. further went 396, the court Sup. Ct. 63 L. Ed. 250 U. S. repair gang of a a member Act covered that the held carrying material track nor repairing the engaged in neither who bridge carpenters were gang of repair There a purpose. for that Railroad, employed lived cook, A also living in a car. bunk preparing a meal for injured, while them car with The said: ran the car. court engine into when them, bridge present in the case was so carpenters work of the “The as to be in effect interstate commerce closely to defendant’s related plaintiff’s question is, what was relation next of it. The part freely that may be conceded if bridge carpenters? It work of - merely camp or cleaner or attendant acting as cook been he had bridge re- carpenters, and without personal convenience properly been gard work, he could the conduct of their . . any participant in their work. . to be in sense a The deemed employed is that tvas significant thing opinion, in our defend- actually assist, assisting, bridge the work car- ant penters by keeping place work, their bed and board close to their rendering organiza- proper thus for defendant to maintain easier bridge gang forwarding by reducing their work tion of the going lodging place. from their meals and their time lost brought daily instead, them If, bridge had their meals to at the they happened working, it hardly ques- would be doing part (Italics tioned his work so was a of theirs.” ours.) evidently opinion court bringing the meals bridge repair much part crew to the was as of the work on instrumentality transportation of interstate bringing as was bridge case,
a sack of bolts to the Pedersen preparing and that get the meals could without where them loss of time amounted
1183 pre been meals, which bringing as to them had thing to the- same has The same rule pared. away go crew for them. too far -the to replacing carrying water workmen applied employee been to to an [Chesapeake & Ohio rails on a track used interstate trains. 846, 163 282 U. S. (Ind.), 283, Co. N. W. certiorari denied v. Russo would 750, Sup. 75 L. Ed. think the court 51 Ct. But we do not 25.] engaged com cook in in interstate held that the Smith case be (work closely as to transportation merce to so related interstate it) finishing practically duty been, if part a he had when off after of regular heating work, washing his or shave his own clothes water although or wash mas himself, shown, the relation of hereinafter might doing ter and servant exist while he was so. (Brown’s case,
In another Admrs. v. Norfolk & Railroad Western Co., (2d) 319), 12 getting Fed. helper killed, a cook’s while eamp coal either for the car car, train, or his own bunk while the transporting place work, both making cars to of a temporary yards. stop in the court, holding railroad in recovery could be had Act, under the Federal said: day’s work, of did the end injury not occur after here “The . during day’s . . work. enforced idleness period but at a of actually engaged he is in the labor may employed while not One be hand, his temporarily A who leaves employed section perform. water, get drink or reballasting an track to a work of interstate in employed inter- light pipe, not, course, cease his does day’s . . work the act state commerce. . After the end employee necessary work, be a of his he is no must incident or longer meaning Employers’ Lia- employed within the bility But, employee Act. if the act of occurs at interval a rest during day’s work, employee changed, the status of the is not if is, intent, the act done employee’s duty inconsistent with the appointed resume the work at the time.” Respondent, here, Chicago, relies Brock Rock Island & Co., Pacific 502, Mo. 266 S. W. A. L. R. certiorari 266 U. denied L. Ed. 45 Sup. 266. Ct.
There, living gang, cars, bunk while repairing telegraph line, interstate had come back to them for their noon meal. car, Brock injured, after returning to bunk going while across yards get the railroad a bucket of water. This court held he could recover under Act, saying: the Federal “The procuring taking of water and of the meal at the time and place under the circumstances and under the method force were ancillary to the work to be done. . . Exceptions . arising out of departure arrival at or place from employment cessations necessary or identical to the work must be recognized. In
this case the act plaintiff, in taking his meal place at the inci- acts and the defendant provided the conditions work done, and the already to the thereto, had relation dental day.” be done on thereafter to part ismen case, to the taking the food Smith If, as said food taking tomen logical work, it seem of their would *12 2 on Eoberts part of it. likewise, returning would, them be rule, 739, 1391, states Carriers, page section Federal Liabilities of work, follows: interruptions as concerning of the incidental employment course of his in the employee “An is deemed to be exigencies during incident interruptions actual service of his going to or necessity, while personal of business or of activity are of suspensions place work, such activities or because essential employment. It is necessary concomitants of the their minister' to discharge duty men at intervals
efficient
re-
orderly performance
at times
personal
of service
needs, and the
comings
goings,
quires
Many
men to stand and wait.
of such
expected. But here
interruptions,
diversions and
are normal and
exist,
employment,
ceases to
approaches the line where the relation
degree to which the em-
and the test of its
lies in the
continuation
separated
ployee
service.”
has
himself from active
general
pur
work for
“temporary stoppage
rule that
poses
necessary
daily life
which are the
incidents of
inevitable and
every
necessity
contemplation
parties
must of
of the
employment
suspension
and hence to
no
of the relation of
create
employer
Ruling
in 18
employee” is stated and illustrated
Case
Law, 583,
Juris, 274,
39
88,
Corpus
398,
section
section
36 American
(annotation);
Law
906
Reports,
Servant,
4 Labatts Master and
4690-96,
work,
eating,
section 1558. When such cessation of the
for
drinking
necessities,
necessary
and other like
are
incidents of the
employment,
employee
an
so
does not sever his relation from
transportation,
work of
doing
interstate
which he is
and intends
doing
to continue
working hours,
he,
the remainder of his
therefore, remains under the protection
Federal Act.
[Brock
Chicago,
v.
Rock Island & Pacific
304
Co.,
Railroad
Mo. 502, 266 S.
691;
Troy
W.
Carter v.
Louis,
St.
&
Co.,
Eastern Railroad
307 Mo.
595,
358;
271 S. W.
v.
Ry.
Westover Wabash
(Mo.),
Co.
6 S. W.
(2d) 843, certiorari
278
632;
denied
U. S.
Hines,
Yarde v.
209 Mo.
547,
App.
238
151;
S. W.
Bradley v. Vandalia
207
Co.,
Railroad
Ill.
App. 592; Sterner v. Mich. Cent. Railroad
204
(Mich.),
Co.
W.N.
102;
v. Lehigh
Pallocco
(N.
Valley
Y.),
Co.
1185 Ry. Co. A. S. & 294; v. D. S. 892, Sup. 50 Ct. Graber 74 L. Ed. 345, 598, l. c. 581, 293 Mo. Payne, 489; Elliott v. N. W. (Wis.), 150 Likewise, “when 706, 23 715. 851, 856, l A. l. c. c. L. R. 239 S. W. trans interstate with duty in connection employee is summoned he Act soon as protection portation of the is wdthin the also under railway company and premises’of the comes out leaving passing his he is protection while after duties the same employer within a rea provided it is done premises of his (or completing along if he is the usual route” sonable time and regular hours). Roberts, Federal Liabilities after [2 244 Winfield, v. U. S. 739; Railroad Co. Carriers, 1393, Erie see. 556; Rail 1057, C. M. P. & Pac. Sup. 61 37 Ct. St. 172, L. Ed. (2d) denied, (C. 866, 33 A.), Fed. certiorari Co. C. road v. Kane Sup. 37; Payne 50 Dennison v. 74 Ed. Ct. 280 U. S. L. (C. A.), 333; L. Co. v. Davide C. (C. S. & A. Railroad C. Fed. P. Co., Navigation Oregon & Lamphere A.), Fed. S.) 1; (N. Lopez A. 47 L. R. A. v. Hines C. Fed. C. *13 Ry. 345, 37; Laughlin Co., 297 (Mo.), 254 S. v. Mo. Pac. Mo. W. 222 949; Schaff, 412; 282 497, 248 S. W. Williams v. Mo. W. S. Chicago, Co., & 284 Crecilius v. Milwaukee St. Paul Railroad Mo. 121, 415; Ry. 223 26, Wagner Co., App. W. v. C. & A. 209 S. Mo. 771; 232 Ann Arbor 160 (Mich.), S. W. Salabrin v. Railroad Co. 573; 552; Ry. (N. C.), N. W. Saunders v. Southern Co. 83 S. W. also, (annotation); R. see, M., Ry. 36 A. L. 906 K. & T. Co. v. Rentz Virginian (Tex.), 959; Ry. (W. 162 S. W. Easter v. 86 Va.), Co. S. E. 37.] would, course,
It be much easier to administer Federal Act if it all applied the work of all employees, engaged of railroads ‘‘ transportation. interstate However, owing during to the fact that day, employees same rapidly railroad pass often from one employment class of another, the courts are constantly called questions to decide those close where it is difficult to define the line which divides the State from the interstate business.” Y. Cen. [N. Carr, Railroad v. 238 260, Co. U. 59 S. 1298, L. Ed. Sup. 35 Ct. necessary This is question because is 780.] of the fundamental one jurisdiction. employee If the engaged is not “among commerce states,” Congress the several authority has no injuries legislate concerning rights remedies sustained. 1, 8, [Article Sec. 3, Clause Constitution of the United Likewise, if he so States.] engaged, since subject injuries the entire in interstate commerce completely is so covered Acts, Federal the States cannot any make provisions concerning regardless them of whether or Congress not provided liability has every injury. Y. Cent. [N. Railroad Co. Winfield, v. 244 147, U. S. L. 61 3045, Ed. 37 Sup. Ct. is, It 546.] therefore, the nature of the work which the employee doing 1186 which do expects he later what not injury and time of Indus Bolle, and Bezue, recent question. [See determines Welch, v. Co. Railroad Erie also, supra; cases, Commission trial Railroad Ill. Cent. 116; Sup. 37 Ct. 319, 61 L. Ed. 303, 242 U. S. 1051, Ed. 58 L. 646, Ct. Sup. 34 478, 473, Behrens, 233 S.U. v.Co. 241 Harrington, v. Q. Co. Railroad B. & 163; C., 1914C, Cas. Ann. W. D., L. v. 517; Shanks 36 Ct. Sup. 941, 60 L. Ed. 177, U. S. For Ct. 436, Sup. 36 188.] Ed. 60 L. 556, U. 239 S. Co., are track interstate repairing an men although section example, transportation of interstate instrumentality
working upon
one
Act, yet when
protection of
therefore are
fire
“burning a
put to
work and
from this
taken
of them is
guard
prevent
the destruction
way to
right of
outside
liability he
saving
defendant
hay
adjoining
farmer’s
[Myers
injured.”
commerce when
in interstate
engaged
257,
246 W.
certiorari
Co.,
239,
296 Mo.
S.
Q. Railroad
C., B. &
v.
also,
So,
43
Ct.
Sup.
832,
67 L.
denied,
624,
261 U.
Ed.
S.
519.]
mowing grass on the rail
injured
while
track laborer
where a
required
compliance
with a state statute
right
way
road
yellow
thistles, white and
daisies
Canadian
to “cause all
the railroad
growing
occupied
on lands owned or
other noxious weeds
and all
held,
every year,”
down twice
each
it to be cut
being
simply
comply
work was
with the state
if this
done
C.,
in interstate commerce.
v.
N.
statute, he is not
[Plass
852;
Quirk
see, also,
226 N. Y.
N.
v.
Co.,
E. Railroad
E.
Ry.
(N.
139 N.
Y.),
Erie
Co.
E.
Southern Pacific
Co.
(Utah),
denied,
Industrial Commission
Pac.
certiorari
Sup.
employee
73 L. Ed.
Ct.
U.
Neither is an
11.]
although
loosening
quarry
engaged,
rock
so
the rock was to be
away
ballasting
[Conway
hauled a few miles
and used for
a. track.
*14
Ry. Co.,
115;
Pac.
248
v. Southern
Pac.
McLeod v. Southern Pac.
299
Ry. Co.,
Fed.
Nor is
employee,
unloading
an
while
ties
616.]
along
right
way
to be stored
for future use.
v. Mo.
[Sailor
Ry.
(2d)
Co., 18
Pac.
S. W.
Nor an employee unloading poles
82.]
repair
to be later used for
of an
telegraph
interstate
line.
[Fenster
Ry.
R. &
C.,
Co.,
I.
Pac.
309
475,
macher v.
Mo.
1187 177; S. Q. 241 Ry. Harrington, & U. B. Co. v. [C., traffic. interstate 76 296, U. Commission, 284 S. v. Industrial I. Railroad Co. E. C. & agent, a held that station Sup. also been 52 Ct. It bas 304, L. Ed. 59.] points who tickets to line, sold an interstate railroad on at a station although freight, he had interstate and handled the state outside inter with the railroad’s reports in connection previously out made starting in engaged in interstate commerce business, state was not warming purpose o'f stove for the in the station a fire with kerosene 10 198, 747, A. Bush, 104 178 Pac. building. v. Kan. [Benson Court Supreme of the L. R. One of the recent decisions 1165.] to, supplying heat referred also holds that States, the United above buildings is interstate work is done not commerce. where interstate Ry. Bolle, supra.] & N. W. Co. v. [C. general employ be is not the
It will therefore seen that it engaged not employee, ment which whether or he is determines doing is commerce, interstate but that this is determined what he particular above, at As an employee time. shown after he has stopped protection his actual work under the Act for Federal premises reasonable time in which to leave railroad quoted includes, taking if necessary, the authorities above this him conveniently a place lodgings where he can reach his and also in cludes, if necessarily work, incidental a reasonable time to change wash, up, leaving clean clothes premises. before Cer employees tain of' exigencies classes railroad because of the serv ice, frequently lodge, sleep eat in company’s the railroad ears duty. This, during however, hours off engaged does not make them duty. interstate commerce while are Roberts, off [2 739; Carriers, 1401, Liabilities of sec. Ry. Bumstead v. Mo. Co., Pac. 99 589, 347, Kan. 162 1917E, 734; Pac. L. R. A. C., Smith v. M. & Ry. (Minn.), St. P. Co. 195 534, N. W. certiorari 264 denied, U. S. 582, 68 L. 44 860, Sup. 331; Ed. Ct. Ry. Brown v. Pere Marquette Co. 213 (Mich.), 179, N. W. certiorari denied, 275 U. 72 538, L. 413, Sup. Pryor Ed. Ct. v. Bishop, C. C. A. 234 Fed. 9; Bishop Delano, 265 Fed. denied, certiorari U. S. 65 L. Ed. Sup. 7;Ct. contrary decision see Sanders v. (S. & C. C.), C. W. Co. 81 S. E. In Bishop case a mem 283.] ber of a train crew who had finished run, his interstate but was sub ject call for an trip interstate had to respond, if given, hour, slept caboose yards. in the railroad The court held that he was interstate commerce, saying: “If, however, he could deemed be in employment of company at time of injury, nevertheless he was not then actual- ly employed in interstate commerce. His employment actual time *15 holding ready city Chicago respond to to a himself call call, for service. That came, when it would be for an interstate engagement Chicago actual waiting an make the trip, does the Federal Act.” within the terms commerce
interstate Kane, Ry. Co. v. & St. Paul Chicago, Milwaukee case spent work repair for track employed a man 866, where (2d) Fed. morning before next camp was killed the car night the bunk at to general statements seem its work, would began track actual he Act Federal applicability of the that imply hold otherwise case employment. However, that general determined was to be already been had justified theory the deceased might on the making do preparation to killed while work and was for called it, that the court so considered since It seems response thereto. so in Lamphere case where upon the principally decision based its way work. on his employee was killed engaged working here, was on the track he was respondent, When transportation closely prac to interstate as to be related in work so therefore, was, under the test established tically part of it and engaged States, com Supreme Court of the United in interstate day beginning work, of the he was called for this merce. When at the responded call, protection within from the time he was, he protection throughout its Federal Act. He remained within although work, day, if intended to continue he at noon he went although his meal and he ears eat ceased to the bunk day’s any purpose incidental to the necessarily other work. But when and returned to his bunk car he ceased that work at the end day duty, off so far as track work was concerned, he was until called morning, next whether the intervening for such work the time was a , Sunday. Bishop day case, As said supra week or his actinal holding then, ready respond employment, to a call to himself engaged doing, was in work In so service. so closely related to transportation practically to be part as interstate If, of it? as in Myers case, supra, he had been taken off the track work put fight purpose field to for the into a farmer’s fire saving the rail liability damages, would not road have engaged. been so Why be so when he is would he taken off the track work and put sleep in a bunk car? Or there put to to rest and up clean on Siinday? must be that Our conclusion respondent, in building a fire though car, even he was there appellant’s in the bunk direction subject to call to work on the track if an emergency had arisen, work, engaged in such whether was not he was building the fire to car, to heat the bunk water to wash his clothes, heat or to heat water Therefore, himself. we wash hold the case should not theory upon been submitted was liable under Liability Employers’ Act, This, however, necessarily does not mean, appellánt con that the relation master and servant tends, had ceased; that re-
1189
employ
scope of his
of the
acting outside
therefore,
was,
spondent
law
upon the
based
action
respondent had no cause of
;
ment
acting within
may be
seen,
employee
a railroad
have
As we
Iowa.
not
work but
doing
kinds of
various
employment
scope of
building
in the bunk
a fire
While
commerce.
engaged in interstate
be
repairing the
respondent’s work of
not incidental
stove
car
(that
a minor task which
is, it was not
part
it
so as to
track
may
repairs),
it
essentially
larger
one of track
part of
living
appellant’s bunk car if he
incidental
necessarily
been
employment
of his
there
the terms
required to live
tinder
there.)
washing*
(He
it
there.
said he
told
do
expected to do his
Ry.
(S.
81
v. C. W. C.
Co.
C.),
as Sanders
such a case
We think
&
distinction,
Bishop
which is made in
E.
to make this
fails
make
is
to the
ease,
that the failure to
due
confusion
transportation”
and “interstate
“interstate
commerce”
re
terms
by
Supreme
Court
the United States
Bezue,
ferred to
in the
Bolle,
Saying
employee,
Industrial Commission cases.
that an
car,
case,
as in the
sleeping
in a bunk
Sanders
is
closely
part
so
related
interstate commerce as to be a
it, simply
determining
question,
by
means that
the court is
not
what the
time,
doing
employee
by general
is
but
character of the work
Supreme
employed
he is
to do. The
Court
says
of the United States
But
this must not be done.
it is obvious that an employee, who is
quarters
required to remain in
by
furnished
the employer, is in a
goes
far
than
different situation
one who
night.
to his own home at
circumstances,
Under such
he
occupy
does not
premises
as a
but
tenant,
boarder or
aas
servant. This is true whenever
oc
“the
cupancy is for the benefit of the master and as an accessory or aid
performance
to the
of his duties as a servant.”
on Master
[Wood
& Servant,
In
sec.
such cases the
155.]
master is liable
in
for
juries
by
caused
a defective
premises.
condition of the
[Sidentop v.
47
Buse,
Supp. 809;
N. Y.
v.
Anderson
Steinreich, N.
Supp.
Y.
498;
Mullery
(R.
Collins Harrison
I.),
v.
Atl.
64 L.
R. A.
v. Mo.
Tel. Co.,
& Kan.
plaintiff employees charge and the engine were fellow ser vants, saying: “He was, contemplation of law, employment in the of the com- pany at the time of the collision. presence His in the car on the side track at time of the collision explained can be in no other way, proof. under the only by It was reason of the fact that employee company that he was in the car on the side track at the injured.” time he was Likewise, Illinois Central Co. v. Panebiango, 129 Ill. App.
1, members of a track repair gang “lived, ate, cooked and slept in boarding these cars, which provided by were appellant pur- pose. The men furnished and cooked their own provisions, and ap- pellant had no connection therewith. . . . Appellee was ill and bread, to bake prepared afternoon In the work. go to not did board, got out upon a dough Ms put o’clock he four about dough, ear with the started side and west car on the injured when He was bake it.” the oven and go to intending to car. The court struck the train said:. in the appellee was not contention that merit in "There is no day. working to be happened because employ appellant regular employ Cobbs, 172. was in the 195 Ill. He Heldmaier along; and was ear came monthly pay when paid appellant; cook, sleep eat, in which to with a car furnished employer employee, The relation of at a time. for months live occupy the did not because appellee car, cease right and the . . . work on account of illness. temporary absence of his sleep, the men should cars which company furnished these they table, should cook dishes for their and stoves altogether them, and consider who lived with we and a foreman appellee ap- the relations between too narrow a construction of say had for or over pellant that it no control responsibility during shovels, picks spades except men the hours when had *18 in their hands.” brought Employers’ of the above cases under the
None were Federal Liability [See, also, Pugmeir Oregon v. Act. Short Line (N. S.) 92 R. (Utah), 762, 565, Co. Pac. 13 126 Rep. L. A. St. Am. 805; Larson v. Industrial Accident 224 (Cal.), 744; Pac. Comm. Speeder Corp. (Iowa), Walker v. Mach. 240 N. 725;W. Guastelo (Mich.), v. Mich. Centl. Railroad 160 N. 484, Co. W. L. 1917D, R. A. 69; Papinaw (Mich.), v. Grand Trunk Co. 155 545; N. W. Holt Lbr. Co. v. (Wis.), Industrial Comm. 170 N. 366;W. 36 A. L. R. 917, (N. [annotation); S.) 12 L. 855, R. A. (annotation); 18 R. C. L. 39 88; sec. C. J. 4 sec. Servant, Labatts Master & 4684, see. Under these authorities it apparent would seem 1556.] that there was substantial evidence from which the jury could find (cid:127) that of relation master and servant existed respondent between appellant injury. at the time his Nor would this court hes say, itate to if such a case arose under our Workmen’s Compensation Act, injury that the arose out and in the course of employ ment. This court has injury held that an does so arise whenever employees are "at any place where their services, act, or any task, or mission which forms necessary a part of may their services, reasonably require them be.” [Wahlig v. Krenning-Schlapp Gro Co., cer (2d) Mo. S. W. This is true 129.] whether employee changing be a tire on his automobile in the basement of home, (Leilich his v. Chevrolet Motor Co., 328 Mo. 112, 40 S. W. 601) (2d) riding or in airplane. [Crutcher Curtiss-Robertson Airplane Co., Mfg. Mo. 52 S. W. (2d) 1019.] de upon tbe contention final appellant’s brings tons This appellant’s on negligence that actionable evidence
murrer liable either under appellant to make sufficient part, theory Respondent’s shown. law, the Iowa or under Act is that in his instructions alleged petition hypothesized in his performing he was bunk car washing clothes in the his he was when employed place in where he employed a to do which he was work necessarily living the bunk ear in incidental to it was it; because to do employ his the terms of required to live under he was camp where theory negligence respondent’s appellant’s ment. Therefore work duty place furnish him safe appellant’s it was that (kero clothes) work appliances safe with (wash his ; explosive gasoline) rather make a than which to fire sene with performance duty, when was remiss this appellant that dangerous mixture in the kerosene its foreman of notice to after respondent that would be condition and assurance barrel there, remain mixture to failed to warn remedied, allowed the it provide place, it was there and kerosene for them in another men dangerous them permitted to continue to take the mixure to use knowing danger; cars without their bunk this fires) (furnishing appliance building respondent’s unsafe caused (for washing clothes) place of his to become unsafe re injuries. would appellant’s liability sulted It seem that theory might simpler negligence. be based That If is: employees furnish undertook to its kerosene, food, drink any thing or other for their use living while camp its bunk car (where they to appellant’s lived because it advantage to have keep proper organization them live there order to work) to do the necessarily it would the duty to furnish such as would dangerous not be and harmful. It would make no difference whether required to furnish such articles or voluntarily did so necessary any reason. It would not be be appliances with *19 they which to work or place that the made of work unsafe. If un circumstances, knowingly der such it furnished to employees its a dangerous explosive, poisonous food or drink or some other danger ous or defective substance or article for any ordinary proper use, it sec. 45 C. J. 846, sec. 264 (dangerous necessary to find that it was bunk in the and in the course of the employment. 603, sec. would be liable for 98 (unwholesome 102.] car camp Injuries from such food); 39 on Sunday and wash their there, clothes that injuries that resulting therefrom. C. J. appellant instrumentalities); causes would also arise [10] sec. 381 (impure water) ; required the men Instructing [26 18 C. J. 787, R. the to out L.C. jury stay the bunk car was place of work, and that the kerosene was an ap pliance furnished appellant with which do to work appellant’s
1193 unnec anof respondent assumption by undoubtedly was an purposes, prove. to required which was essary negligence as to the burden washing his that contention This, course, was the result engaged in interstate commerce. clothes he was kerosene furnished appellant that Respondent had evidence the filling the lanterns lamps and for filling bunk car the to take it watchmen; to night permitted that were the men the.bunk supposed got the who purpose; men ears for that one of the that watchman. injured night day was respondent kerosene on known that from evidence It is at least a fair inference starting fires it for appellant’s to men foreman that also used As said purpose. appellant to use it for that and'that allowed them knows 749, “everybody (Kan.), Bush Pac. Benson v. also, [See, Waters-Pierce that will start coal folks fires with oil.” Sup. Oil Ct. Deselms, Co. v. U. L. Ed. Republic (Iowa) Respondent Ellis v. 110 W. Oil Co. N. 20.] bar gasoline also had in the kerosene evidence to show that there was ; days rel before fact, that informed two the head foreman of that barrel; gasoline procured which from that burned him. cars, put the head kerosene, foreman said he would for use the bunk in the blanket car warn to use contents and would the men not car; barrel in kerosene the tool and that the head foreman had ample, opportunity so, intervening forty-eight hours do during go which the men were or return work assembled eight at least times nights and were in their bunk on there cars two but after. therefore, failed to do so. conclusion, Our is case that the should not ployers’ Liability Act, been jury Em submitted Federal respondent but jury a case made for the on his second count based the law Appellant’s of Iowa. de murrer to the evidence properly was therefore overruled. whether, question The next since case was submitted to the jury under theory instructions drawn on the Federal Employers’ Liability Act applied, the can Respond verdict stand. ent had two main instructions. One hypothesized of them the facts (about being required to there) live in the bunk car and wash clothes which respondent brought believed the case within the Act jury instructed that, if true, found those facts to be he was in interstate commerce. The other commenced with the abstract statement that it duty was the to use ordi nary provide care to for respondent “a reasonably place safe and reasonably appliances safe with gave to work.” It then jury following negligence; test “If jury believe from the evidence any that there extra ordinary danger unusual plaintiff with gas reference to *20 oline and kerosene or coal plaintiff’s oil of which co-employees had which, by its acting through and defendant, knowledge the and of no of lack such knowledge, and that foremen, did officers personal endanger the did co-employees any, of said
knowledge, if which with appliances the cause and did safety plaintiff dangerous, unreasonably unnecessarily and work to be required to Mras to foremen officers said duty of defendant’s then, it the in warn to caution care and reasonable ordinary and exercise extraordinary to such with reference co-employees plaintiff’s struct duties, if these perform any. to if A failure danger, unusual negli failure, is was such there you believe the evidence meaning instructions.” gence of these within the jury the which the facts out full detail then set in The instruction In addition to plaintiff. for a find find verdict in must order find that required by this instruction jury were facts these the required a commerce respondent in interstate required It also instruction. finding out in other of facts set his of his injuries of and in the course jury to arose out find that necessary law to finding Iowa cut employment. under the This assumption contributory negligence and appellant’s defenses of off assumption Federal rule of of risk. Other covered the instructions contributory damages. diminution Re- negligence of risk and in alternatively separate pled facts in spondent contends that law; counts; a action under Iowa that he stated cause of every necessary required finding instructions fact recovery law, finding requiring under the Iowa addition great necessary many recovery of a facts not other under the law; merely placed upon Iowa that this an additional burden says him. In short, he that the Federal Act was more favorable to appellant Iowa law and, having than the since it had benefit the case law, submitted under the most favorable inis no position complain. recognized This propriety court of re- spondent’s Schaff, contention William v. 497, 222 Mo. S. W. 412, when holding that the Act was not as favorable to a railroad as law Missouri, it said:
“The substantive rules of liability, adjudi- tort fixed cations in State, this differ materially from those which obtain in falling cases statute; under the Federal particularly regard contributory the doctrines of negligence assumption of the risk. Under contributory State, law of the negligence part on the injured party usually is defense; whereas under the Federal goes only statute damages; reduce and assumption of the risk given scope wider the national courts than is allowed Missouri. Supreme Court of the United States has held that in a case within act Congress, the Federal law ‘is exclusive and supersedes State laws subject.’ [Chicago Ry. Co.
1195 239 if Wright, 548, plain U. S. For these reasons it is 551.] act, action scope a canse of was not within the bnt was tried though were, retried, law, as it must the unless rules of affect- liability ing by and as established the the courts State are the of same as those which obtain under Federal statute the or are less party against given.” to the (Ital- whom the verdict was favorable ours.) ics It appear here, would have, very we the situation which this court referred to in Schaff the case. law Under the of Iowa an em ployer rejects who Compensation the Workmen’s Act, appellant did, this case allowed, is not employee case an sustains an in jury arising out of and in the course of his employment, the defense assumption of risk or the employee defense that negli the was gent, “unless negligence such was willful with intent cause injury, the or the result of intoxication part on injured party.” Iowa, Code of 222, [1927 sec. Further 1375.] more, making a ease for jury, employee an has the benefit of presumption negligence from the fact that he injury sustained arising out of in the of the employment. and. course Code [1927 Iowa, 223, sec. Under the appellant Federal Act 1379.] en titled to assumption the defense of risk, urge contributory and to negligence in damages, diminution jury and the were instructed that these arriving matters should be considered in at their verdict. They were also instructed that respondent must find that washing doing his clothes something by which the terms of employment required he was place to do in a required where he was therefore, to do it. seem, It would had the ease sub theory mitted on the most favorable to it both as law which applied negligence respondent which required prove. Supreme Court of the applied United States has the converse proposition; of this that is, where the case was submitted under law, essentially State which was or same' more favorable to the Act, although
railroad than the Federal applied, Federal Act complain. [Chicago railroad cannot & Northwestern Co. Railroad 1018, 237 Gray, 399, 620; U. 59 Sup. S. L. Ed. 35 C., Ct. R. I. & Ry. Wright, Pac. Co. v. 239 548, 431, U. S. 60 L. 36 Sup. Ed. Ct. that, judgment It held has also where the rendered based 185.] Employers’ on the Federal Act, though even Liability defendant was not gov interstate commerce and the case should be Kansas, questions erned the law of “these are immaterial here since the Kansas statute is so similar to that of the United States liability appear that the of the defendant does to be affected governed question of which of them the case. In such circum unnecessary stances it is applied. to decide law C. W. [K. 51, McAdow, 240 60 Sup. Co. v. U. S. L. 31 Ed. Ct. In 252.] where law recovery the state case, it another sustained the evi When commerce. alleged in interstate petition employment allega treated employment, the court dence failed to show such submitted as eliminated respecting commerce tion interstate 234 U. S. Hayes, Ry. Co. v. under the state law. ease [Wabash v.Co. C. see, also, N. Y. Sup. Ct. 58 L. Ed. Air 122; Seaboard Sup. Ct. Ed. 340, 67 Kinney, 260 L. U. Sup. Ct. *22 126.] 60 L. Ed. Koennecke, 239 U. S. v. Line Mo. Co., 321 Ry. L.-S. F. St. court, in Sullivan This law state under the case submission of approved the (2d) 735, W. doing exhaus it In so Act. Federal brought the under which was the approvingly quoted and tively the authorities reviewed Hayes follows: case as injury, for the right to recover only one plaintiff asserted “The arose it Whether one. have but things could he in nature and the cog- equally it was law, state the Act or under the Federal under an alternative presented it been court; had in the state nizable omitting the another containing and counts, separate one way in pro- commerce, the in interstate injury occurred allegation the it count, after the latter under judgment to a priety proceeding sustained, would doubtless be could not first appeared that the Act would Federal nothing in the Certainly, conceded. freely been way.” in the have been proper plaintiff petition for a to combine in his
It is a count on may Federal Act one on the state law “for not able the be of action under the Federal statute if prove a cause he had only might a cause of action stated under the statute he defeated be it; being prove then when able to he sues under a state law, might- defendant him statute or at common the defeat show statute, liability if ing question the the Federal the stop judicata Employers’ it.” did not Federal fes [Thornton’s Liabilitj' Ed.) (3 see, also, Act sec. Liabili Roberts Federal Carriers, Chap. only This court has held that ties our law 48.] requires petition plain shall contain “that the and concise state constituting the action ment the facts cause of and the relief to may plaintiff suppose himself entitled. Its sufficiency which the question, answer these judged by the to the do facts entitle the state, in force in plaintiff to relief under the laws this and in con general laws, sidering it, Federal, whether the State or must be necessary It is not that these laws be mentioned considered. or pleading.” [Pipes any way Co., identified v. Mo. Pac. course, W. Of if a party upon 184 S. relies Mo. 79.] plead state, respondent must it plead another did statute of submitting case, jury Iowa. When it comes to laws of which instructed under the law the evidence should be shows to be applicable. If appellant prejudiced so, by the do failure judgment could not stand. If this case been had submitted to jury, under requirements (less appellant) favorable to Iowa law, respondent injured had been on track work to which F’ederal Act applied, that be Nor would reversible error. could the verdict, here, stand if applies the Iowa law which was more favor- appellant able to (As than Federal Act. was the Missouri law ease.) theory the Schaff But case was submitted theory most favorable appellant; gave benefit of defenses it did not applicable law; greater have under the Iowa and a thereby burden placed upon respondent required. law than the Appellant was thereby. Therefore, benefited prejudiced and not is not entitled to a reversal.
Appellant assigns a number of errors in with the in- connection given respondent structions (mostly its refused instructions instructions). assignments withdrawal merely Most of these are copied points any in its and authorities without statement of rea- authority. -sons and without appellant’s argu- citation of Most of ment as to them is with to the Employers’ reference Lia- bility may applied "Whatever Act. said these criticisms as *23 Act we find instructions sufficient under the Iowa law. by
The final contention made is that the verdict Respondent is excessive. twenty-two years old at time of injury. his trial, While at working the time of the he was in the parts department distributing of a agency Ford automobile receiving practically which he was monthly wages the same as he got injured, from the when the kind of work was able to very limited, do was whether could continue to obtain such employment questionable. legs severely was at very least His were large great burned pain many areas and he suffered weeks. hospital months, He in the two and one-half and had unhealed legs Physicians sores on his for some time thereafter. described injuries degree burns, designation as his third which is the of deep They “in destroyed est burns. said that the burns areas at least have destroyed muscles; and some super subcutaneous tissue have also and insofar vessels, ficial nerves blood there been as has destruc vessels, particularly, tion of the blood the venous circulation more ’’ sluggish return there will be blood from his feet limbs. destroyed They nerve had also said that tissue been and that this because “the effect from would cause irritation heat and cold will respondent heavy augmented;” and that was disabled from man prior injury. It as he to his ual labor such did was shown that re swell, legs ache; spondent’s cramp itch and be burn circulation; of the return cause of the destruction and that this sleep. was further shown respond- condition causes loss of It as such to do tried work; that he has only light do can ent he was where garage in the tires, changing washing windows and stiff legs were his it because to do was unable that he employed, but improvement bend; stoop or not, pain, without he could be; and that ever it would as the trial time of great at the was as respond- While gets older. as he get worse tendency will be can- testimony, we of this verdict, in view large received ent has excessive. jury verdict say that the dis- C., concurs; Sturgis, 0., Ferguson, judgment is affirmed. sents. adopted Hyde, C., is opinion The foregoing PER CURI A M: JJ., Gantt, Atwood, J., Frank and P. of the court. opinion result.
concur; Ragland,.J., concurs Newberry Mary Minors, their Gibson, Green Gibson and Clinton Newberry Appellants, H. Doerner, Curator, Guardian and E. Heir of Bonnie Johnson Johnson, Administrator and Sole (2d)W. 783. Dora Smit h. 56 S. Banc, 1932. en December
Court