235 F. 944 | D. Colo. | 1916
This action is brought to recover the penalty imposed by act of March 4, 1907 (34 Stat. 1415). The complaint contains 12 counts, each of which charges a violation of the act in that the defendant required and permitted its telegraph operator and employee, whose duty it was to transmit, receive, and deliver orders pertaining to and affecting the movements of trains engaged in interstate commerce, to remain on duty overtime—some charging that the particular office at which the operator was employed was a station operated only during the daytime, while others charge that it was one continuously operated night and day, and in each instance that the maximum of hours respectively limited by the act were exceeded. The
There was a demurrer to the complaint which was overruled. The defendant has answered, and in addition to a general denial, has set up special pleas to all of the counts except the fourth and ninth, to all of which the district attorney has demurred, and this raises the questions for present consideration.
I.
The defendant in its special plea to this count sets up what it claims constitutes an emergency under the second section of the act, by reason of which it asserts it had the right, under the act, to retain the employee for an additional 4 hours. The emergency, as alleged, consisted in the fact that three carloads of live stock were delivered to defendant at Arlington that morning for transportation to Denver. Defendant’s dispatcher intended to have the three cars taken into a train passing through Arlington about 10 a. m., but he forgot and failed to order the cars picked up by that train, and in order to avoid holding the live stock until the following day, the dispatcher ordered another train to pick up the cars of live stock, and in consequence the operator could not leave his duties until that train had taken the cars out, which was about 11:10 p. m. on said day.
The demurrer attacks the sufficiency of these facts to constitute an emergency within the meaning of the act. The defendant’s counsel points out that the conditions which constitute an emergency within the meaning of the act are necessarily of far less import and seriousness to the railroad than “any case of casualty or unavoidable accident” named in the third section of the act, which latter would entirely exempt defendant from the act and relieve it from the penalty. And thus proceeding with the two provisos in hand, one emergency and the other casualty or unavoidable accident, and matching one against the other, coupled with the definitions that he chooses to apply, he easily reaches the conclusion that it does not require much to constitute an emergency. The comparison is apt and logical. The two conditions are separate and in practice are intended to be kept sharply distinct. They can not be made to overlap. Still they are not necessarily so wide apart. The words of exemption quoted above from the third section are coupled with the superhuman, and perforce imply unexpected and unforeseen disaster. There is obviously a wide field between such extraordinary events which wholly relieve from the rule of law, and mischances and mishaps of a comparatively trivial nature which constantly arise and are dealt with in every line of action. I conceive the field to be one in which the emergencies provided for in the act may occur-—such as the unanticipated loss of a train dispatcher (United States v. So. Pac. Co., 209 Fed. 562, 126 C. C. A. 384; United States v. D. & R. G. Co., 220 Fed. 293, 136 C. C. A.
All of these pleas are likewise held to be bad as not stating facts showing in either instance an emergency.
The demurrer of complainant to the special pleas set up in the answer to the first, second, third, sixth, seventh, eighth, tenth, eleventh, and twelfth counts will therefore be sustained, and overruled as to the special plea set up against the fifth count.
II.
The complainant’s demurrer also challenges the sufficiency of these defenses. The attitude of the complainant’s counsel in this respect impresses me as an attempt to evade tire effect of United States v. A., T. & S. F. Ry.Co., 220 U. S. 37, 31 Sup. Ct. 362, 55 L. Ed. 361. Though this point was not in controversy there, no one appears to have challenged the proposition that the 24-hour period must be counted from the time the operator goes on duty. It was only determined in that case that the hours of service within the statutory limit need not be continuous. To now hold that the prosecution may arbitrarily select any point during the regular hours of service for the purpose of reckoning time of employment appears to me to have the necessary effect in many instances of indirectly evading the rule there announced. For instance, it is permissible under the holding in that case for an operator to enter on his duties every day at 6 a. m. and work to noon, then go on duty again at 3 p. m. and work to 6 p. m., but on every other day instead of beginning at 3 p. m. and working to 6 p. m. he might begin at 4 p. m. and work to 7 p. m. Under the ruling of the Supreme Court there would be no violation of the act. But if the prosecution can arbitrarily select the initial point it can bring the railroad company within the act on every alternate day, thus: Four p. m. to 7 p. m. is 3 hours; 6 a. m. to noon is 6 hours, and 3 p. m. to 4 p. m. is 1 hour, making 10 hours. However, I am not prepared to say that the defenses thus pleaded to the third, fourth, fifth, seventh, eighth, ninth, tenth, eleventh, and twelfth counts constitute good and complete defenses as a matter of law and come within the rule laid down in the case in 220 U. S. 37, 31 Sup. Ct. 362, 55 L. Ed. 361. Indeed, some of them concede overtime employment, and those that do not so show seem to present questions of mixed, law and fact. They each start out with the time at which the operator went on duty and the time at which he ceased according to his regular hours, but in each instance there was a short intermission, varying from one hour to two hours in the different defenses, and then his hours extended for a period equal to the intermission. Of course, that renders 'the situation wholly unlike the facts presented in the case in 220 U. S. 37, 31 Sup. Ct. 362, 55 L. Ed. 361. There the time of employment was not continuous, but it was fixed and regular for each day, and so understood by the operator before he went on duty. The intermissions on each day were of the same hours and at the same time. Where the time is so short, as is stated in these defenses (one to two hours), and is variant as to when tire intermission is taken, it becomes a question of fact as to whether or not such intermissions were not mere subterfuges and resorted to for the purpose of evading the act and not really for the purpose of giving the operator time off duty.
But a singular situation presents itself in this respect under the pleadings. That is, assuming that defendant’s claim as to when to begin counting time is correct, but that these defenses should be resolved against the defendant on the facts, it is a question of some moment whether that conclusion would establish the particular of
The demurrer to these defenses will he overruled.