*1 SMITH BUTLER TRUSTEES. et al., Argued No. 313. 27-28, April March 1961. 1961. Decided argued William S. Frates the cause and filed a brief for Harold B. argued respondents. Wahl the cause for himWith E. P. Brigham. brief was F.
Per Curiam. petition
The solely for certiorari in this case raised question regarding the Act bearing Railway on the enforcement of the Federal Employers’ Act. petition granted. The 869. After U. S. full manifest argument consideration, and due it became course the decisions Florida did turn the basis of courts issue on granted. which certiorari the writ is Accordingly, dismissed. with whom The Chief
Mr.
Justice
Justice
Brennan,
join, dissenting.
and Mr.
Justice
Black
agree that,
says,
cannot
as the Court
solely
question regarding
certiorari
this case “raised
bearing
Labor Act on the enforcement
Employers’ Liability
Federal
Act.”
issue
tendered is the familiar one whether a
actually
reviewing
a an FELA claimant of
deprived
properly
court
evidence was insufficient
verdict on
*2
negligence. The
of the carrier’s
finding
support
and the deci-
of
upon “the course
relies
Court
reading of what
My
in
Florida courts.”
sions
to me that
makes manifest
in the Florida courts
occurred
in
under the
Presented
the issue
negligence.
proofs
of the
to establish
sufficiency
is as to the
employ
in
Florida
flagman
a
was
petitioner
The
this action under the
brought
He
Railway.
East Coast
51 et
Liability Act, 45
S. C.
Employers’
§
Federal
U.
Florida. He
County,
of Dade
seq.,
the Circuit Court
in the course of his
injuries
he
alleged that
suffered
a
test” which the
taking
“field
employment
way
and tracks
along
right
him to take
its
required
but has
alleged eight grounds
Florida.
only
two,
six and we are concerned
abandoned
the carrier violated the Federal
namely
negligently
unlawfully requir-
In
and
Act, “(a)
In
test’; (b)
such a ‘field
ing
plaintiff
participate
supervisors
or
negligently allowing
servants, agents
its
”
petitioner’s
conduct such a ‘field test.’
At the close of
at
dismiss
trial,
case
the carrier made motion to
allegations (a)
(b),
ground
under
on the
alleged
allegations “pertain
right
give
that those
to the
a field
if
Respondents
claim,
test.”
contended that
such a
at
not under the Federal
cognizable
all,
cognizable
Employers’ Liability
only
grievance
Act but
as a
within
Adjust-
cognizance
the exclusive
of the National Railroad
Act,
Board created under the
ment
Price,
First
R.
(i);
S. C.
see Union
Co.
§
U.
Pacific
601. The trial
denied the motion and
360 U. S.
gravamen
ruled that the
claim was not
require petitioner
to take a
respondents could
that, “knowing
physical condition,”
test, but
petitioner
negligent
carrier was
to take
test. The trial
also denied the car-
rier’s motion for a
grounded
alleged
directed verdict
insufficiency
to establish
negligence.
returned
verdict for the
The Florida
District
of Appeal,
District,
Court
reversed and
Third
remanded the case for a
trial.
new
On remand counsel for both and the trial judge length discussed at what it held. Appeal Court agreement There was the opinion of the. Court of Appeal ambiguous. It be might read to finding by reversal on the
cause was a claim tried on not actionable under the Federal Employers’ Liability Act but, all, at under the Railway suggested Labor Act. This is by the *3 language in the “If opinion, appellee were aggrieved, remedy he had a grievance for such under the Labor Act.” 104 2d, So. at 869-870. On the other hand, opinion might interpreted also be as grounding the reversal the insufficiency prove of the evidence to negligence, because petitioner, assuming right of the carrier give test, had failed to show that it negligent was proved the circumstances car- rier require petitioner to take the test. Support for this interpretation is in opinion the statement of the appellee’s “The entire case as reflected this record conclusively premised indicates that it was upon claim that appellant’s conduct in requiring appellee to take a field test was unlawful and that all of his injuries and damages resulted from such unlawful act.” 104 So. at 870. 2d,
The trial judge finally concluded that opinion the Court of Appeal was to be read as resting the reversal upon the ground. latter The trial judge stated, “I think that I am inclined agree [petitioner’s counsel] they Appeal] just Court of say didn’t requir- [the ing a field improper. test was They said, ‘requiring the they had the and a field participate
appellee test/ opin- they when wrote conducted that was field test I all, to us at anything means opinion if their and ion, inter- extent of our it to the got have to follow think we they meant.” The and what words of their pretation negli- a cause of action for further that ruled judge trial giving gence part (a) quoted. above allegation be included” test “would trial that the thus reveals plainly on remand The record allegations argument agreed with had parties and the complaint pleaded, (a) (b) and Employers’ under the Federal a cause of action tried, Liability Act. during colloquy carrier admitted for the
Counsel pleaded was the cause of action that if this on the remand actionable tried, fur- counsel went Liability Act. Carrier’s justify it, so far but said, “I think the ther. they issue, think could to travel on they want willing to amend but counsel amend.” Petitioner’s tried on that that the case had been insisted necessary. No for- that no amendment was theory and the trial obviously mal because made, amendment allega- was embraced theory ruled that the within apply counsel desired to (a). However, petitioner’s tion as Appeal’s determination for review of *4 its on rested, interpreted opinion, as the trial had judge present that was insufficient to a ground the evidence a jury question negligence. of since new trial But, by the of there could be no final Appeal, ordered Court until a judgment might sought judg- review of which be In ment was entered on the retrial. order to obtain such retrying a without counsel judgment case, petitioner’s proffered only the trial record of the first trial as his expressly the retrial. He that proof posi- at stated his that prove sufficient “to trial record was tion was that the Bert known that or should have the railroad either knew likely take that test and unable to physically Smith was railroad of what the injured it, spite if he took to be him the test.” they gave knew or should have known, carrier’s over the accepted proffer The trial the Court of ruled that he was bound objection, but raise record did not suffice to Appeal’s holding that that testimony question negligence. of jury “[U]nder rule point, on this that would was adduced before proper there no issue of evidence submit him to this negligence take testimony.” The test under the field entry judgment of a favor accordingly directed the District Obviously the carrier. the case went to the gloss time with this of the Court of the second interpretation opinion. that Court’s earlier judge’s trial curiam, Appeal, per the District Court of Therefore, when authority” previous opinion, of its “upon affirmed trial inter- judge’s 2d the affirmance sustained the So. pretation having rested, the reversal as not on the ground precluded peti- Labor Act Liability Act, tioner’s claim but on the the evidence of recovery support properly insufficient to Supreme under the latter statute. unreported minute, an denied Florida, this granted petition for certiorari. We S. Court, U. 869.
Against background of “the course of the decisions the Florida courts” the Pre- sented, plain ordinary meaning, is English to have its Appeal correctly is whether the Florida Court of deter- mined that the evidence at the first trial was insufficient jury question alleged negligence raise a *5 physical knowing petitioner, the test. For to take the field
condition, is as follows: Presented in holding Court err Appellate
“Did the Florida personal employee railroad sustains when a that fitness alleged physical an performing injuries provisions railroad that the test ordered field 151, C., 45 U. S. Section Act, giving him seq., preclude claiming et from and circumstances such a test under the facts an act this case was Act, C., 45 U. S. Section seq.?” (Emphasis supplied.)
et disagreed the members the Court have Although they these when grant cases, review of whether we should my us Brother Frank- brought except are here all of duty them that we to dfecide on believe have furter our presented the issue review Viewing merits. rely solely I I need read the trial record. not have presented my plainly conclusion the evidence own proofs justify “whether the reason jury question any employer negligence played part, conclusion injury even ... for which slightest, producing Co., Rogers are v. Missouri R. damages sought.” Pacific may my support I 500, 506. summon to U. S. issue concession of the carrier’s counsel on that “the justify far it.” so would reverse remand with direction to an reinstating cause enter order judgment favor of Douglas joins opinion except that he
Mr. Justice would remand for new trial. believes that holding District Court of was correct that the Smith, trial was a fair Butler one. See So. 2d 868.