Summary
In Klar v. Erie R. Co., 118 Ohio St. 612, 162 N.E. 793, the evidence showed that the Erie Railroad Company entered into a contract with the Youngstown Equipment Company whereby the latter handled the repair work on the railroad's engines and cars. Plaintiff, an employee of the Youngstown Company, sustained injuries and sued the railroad, contending that the contractual arrangement between the railroad and the equipment company violated section 5 of the Federal Employers' Liability Act and that therefore plaintiff had a right to sue the railroad directly.
Summary of this case from Lees v. Chicago & North Western Railway Co.Opinion
No. 20588
Decided May 23, 1928.
Negligence — Freight car, on sidetrack after shipment unloaded, not engaged in interstate commerce — Independent contractor — Owner not liable to third persons for negligence of contractor's employee, when — Contractor's control not withdrawn by owner designating and inspecting work, when.
1. A freight car which after being used for an interstate shipment of coal and unloaded and thereafter placed on a side track to await further disposition, is not, while so retained in the yards, engaged in interstate commerce.
2. Where a corporation contracts with another for the doing of certain work without retaining the right to control or direct the manner in which such work shall be done, it is not liable to third persons for injuries resulting from the negligence of the employee of such contractor.
3. The right of such corporation to designate the repairs it desired to have made and later ascertain whether the same were made in accordance with the specifications does not withdraw from the contractor his control over the manner of conducting the work. ( Hughes v. Railway Co., 39 Ohio St. 461, approved and followed.)
ERROR to the Court of Appeals of Portage county.
George Klar instituted this action in the common pleas court of Portage county against the Erie Railroad Company and the Youngstown Equipment Company for damages which he claims to have sustained as a result of personal injuries received while performing his duties as an employee of the defendants.
The essential allegations of the petition are that the Youngstown Equipment Company, an Ohio corporation, at the time of the occurrence complained of, was engaged in building, constructing, and repairing cars and engines in and about the city of Kent, and that the Erie Railroad Company, a foreign corporation, owned, maintained, and operated a system of steam railroads through said city, and was then and is now engaged in interstate commerce; that the railroad company there owned a round house, repair shops, yards, and equipment necessary to repair cars and engines used by it; that both said companies were engaged in interstate commerce in the repair, construction, and maintenance of cars used in interstate commerce; and that the plaintiff was an employee of said defendants and, while engaged, pursuant to the orders of a foreman of the defendants, in making certain repairs, was injured as a result of an act of an agent or employee of said defendants in setting the air brakes on the car under which the plaintiff was working without ascertaining plaintiff's position or giving warning of an intention to test the brakes on said car.
The Youngstown Equipment Company pleaded as a special defense that it regularly employed more than five workmen; is and was at the time in question a contributor to the workmen's compensation fund and protected by the provisions of that law; that plaintiff after his alleged injury, while employed by it, signed an application for compensation, which was awarded to him by the Industrial Commission.
The plaintiff by reply denied the affirmative allegations of the answer of the Youngstown Equipment Company, and averred that said company was engaged in interstate commerce and "could not lawfully be a member of the state industrial fund of the state of Ohio." The plaintiff then sets up a contract, making same a part of his reply, which he alleges was entered into by the defendant companies for the purpose and intent of enabling the Erie Railroad Company to exempt itself from liability in derogation of the rights of plaintiff and contrary to the provisions of the Federal Employers' Liability Act (Title 45, Sections 51 to 59, U.S. Code; Sections 8657 to 8665, U.S. Comp. Stats.), and that the said contract is therefore illegal and void; that by said contract it leased to the Youngstown Equipment Company its property in Kent, consisting of yards, car shops, roundhouses, machinery, equipment, tools, etc., and contracted with it for the repair of all freight cars thereafter to be delivered to it by the Erie Railroad Company at said repair plant and tracks. This contract is quite voluminous and will not be set out in full. Under the terms thereof the Erie Railroad Company designated the nature and character of the repairs, but reserved no right of control over the mode or manner of doing the work that was under the direction and control of the Youngstown Equipment Company. The compensation for services rendered was on a cost plus basis: The Youngstown Equipment Company was required to comply with the Workmen's Compensation Act of Ohio (Sections 1465-37 to 1465-108, General Code), and was to be reimbursed by the Erie Railroad Company for amounts paid thereunder; the Erie Railroad Company was to furnish the money necessary to pay the employees of the Youngstown Equipment Company, who were required to familiarize themselves with the operating rules of the railroad company. The railroad company also agreed to furnish free transportation to the officers, agents, and employees of the equipment company, and the right was reserved by the railroad company to terminate the contract upon 24 hours notice.
On the trial of the case a motion for a directed verdict in its favor was made by each of the defendants at the close of the plaintiff's evidence, and at the close of all of the evidence. These motions were overruled by the trial court and the case was submitted to the jury, which returned a verdict against both of the defendants in the sum of $11,000, on which judgment was rendered, which judgment, upon proceedings in error, was reversed by the Court of Appeals. Thereafter, upon motion, the record was directed to be certified to this court for review.
Mr. John A. Elden, Messrs. Dworken Dworken and Mr. A.L. Heisler, for plaintiff in error.
Messrs. Cook, McGowan, Foote, Bushnell Burgess and Mr. W.J. Beckley, for defendant in error Erie Railroad Co.
Messrs. Harrington, De Ford, Huxley Smith, for defendant in error Youngstown Equipment Co.
The question is presented whether under the undisputed facts disclosed by the record the plaintiff may recover from the defendants, or either of them. The action of the plaintiff is based upon the Federal Employers' Liability Act, and is instituted and maintained upon the theory that at the time of the injury he was engaged in interstate commerce. It therefore becomes a matter of first concern to determine whether the relationship was such that the provisions of that act have any application to this case.
The car in question, loaded with coal, came into the yards of the Erie Railroad Company from some point in Pennsylvania on November 15, 1923. It was unloaded on November 16th and on November 20th was placed on the repair track for the purpose of having some light repairs made thereto by the Youngstown Equipment Company. Those repairs were made, and on November 22d the car was switched out to the classification yard and held there for disposition; there being no call for that class of equipment at that time. Later it was replaced on the repair track and certain other repairs made, and on November 27th it was switched out to the general yards and held there until December 14th, when it was put into a train of outgoing empty cars.
The Erie Railway Company as a common carrier was subject to the provisions of the Federal Employers' Liability Act, but the plaintiff was not entitled to the benefits of that act unless at the time of the injury he was engaged in an act which was a part of interstate commerce.
It is well settled that to recover under the Federal Employers' Liability Act the person injured must have been employed by the carrier in interstate commerce at the time of the injury. Shanks v. D., L. W. Rd. Co., 239 U.S. 556, 36 S.Ct., 188, 60 L.Ed., 436, L.R.A., 1916C, 797. In the course of the opinion in that case it is stated at page 558 ( 36 S.Ct., 189):
"What his [employee's] employment was on other occasions is immaterial, for, as before indicated, the act refers to the service being rendered when the injury was suffered. * * * The true test of employment in such commerce in the sense intended is, Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?"
The claim that the plaintiff was engaged in interstate commerce must rest upon the theory that, the service of this car next preceding the making of repairs thereon having been interstate in character, such was the status of the car at the time the repairs were being made. This theory is not supported by the decisions of the Supreme Court of the United States. Illinois Cent. Rd. Co. v. Behrens, Admr., 233 U.S. 473, 34 S.Ct., 646, 58 L.Ed., 1051, Ann. Cas. 1914C, 163; N.Y. Central H. R. Rd. Co. v. Carr, 238 U.S. 260, 35 S.Ct., 780, 59 L.Ed., 1298; C., B. Q. Rd. Co. v. Harrington, 241 U.S. 177, 36 S. Ct., 517, 60 L.Ed., 941; Minneapolis St. L. Rd. Co. v. Winters, 242 U.S. 353, 37 S.Ct., 170, 61 L.Ed., 358, Ann. Cas. 1918 B, 54; Industrial Accident Commission v. Davis, 259 U.S. 182, 42 S.Ct., 489, 66 L.Ed., 888.
The test applied by the court in the Winters case, supra, is alike applicable here:
"An engine as such is not permanently devoted to any kind of traffic and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events."
That is the situation here. This car was not devoted solely to interstate purposes. It had been so used, but that use had entirely ceased, and it was placed upon the tracks for further disposition, and, during that period, it, of course, was not assigned to any service. The nature of the next or further use of the car was a matter of future determination, controlled, no doubt, by the source of the demand therefor. It follows that at the time in question the plaintiff was not engaged in interstate commerce. No question therefore arises or is presented under the Federal Employers' Liability Act, and the contract in question cannot be held void as violative of any provision thereof.
Under the terms of the contract in question the equipment company became an independent contractor. The railroad company did not retain the right to direct or control the mode or manner of doing the work. That power was delegated to the equipment company and was a part of its duty and responsibility. In this respect, the contract meets the test applied by this court in the case of Hughes v. Cincinnati Springfield Ry. Co., 39 Ohio St. 461. It is there held in the syllabus as follows:
"A corporation organized for the purpose of constructing and operating a railroad, having acquired its right of way by the exercise of the power of eminent domain, or otherwise, may contract with another person for the construction of the whole or any part of the road, without retaining the right to control the mode or manner of doing the work; and in such case the corporation is not liable to third persons for an injury resulting from the carelessness or willful act of the contractor * * *. A right reserved in the contract, on the part of the railroad company, to direct as to the quantity of work to be done, or the condition of the work when completed, is not a right to control the mode or manner of doing the work, within the rule above stated."
Substantially the same test was applied to determine the liability for negligence in the case of Chicago, R.I. Pac. Ry. Co. v. Bond, Admr., 240 U.S. 449, 36 S.Ct., 403, 60 L.Ed., 735.
In the contract in question here not only was the method and manner of performing the work which the equipment company was employed to do within the power and control of that company, but the plaintiff and all others having anything to do with the making of said repairs were in fact employees of that company and in its service exclusively. The action of the railroad company in designating the repairs it desired to have made, and later ascertaining whether the same had been made in accordance with specifications therefor, did not withdraw from the equipment company its control over the manner of conducting the work in making the designated repairs. The relationship of the equipment company to the railroad company being that of an independent contractor, the railroad company was not liable for injuries resulting from the negligence of the equipment company or any of its employees. Under the facts presented many of the cases cited are not applicable.
The question of the liability of the equipment company in this action depends upon whether it is protected by the provisions of the Workmen's Compensation Law. It is conceded that the equipment company was a contributor to the workmen's compensation fund of the state, and that it had complied with all the requirements of that law. It was therefore entitled to the benefits thereof. The record discloses that the plaintiff had applied for and received compensation from the Industrial Commission as an employee of the equipment company, and continued to receive and accept such compensation under an award by the Industrial Commission for the injuries for which he now seeks to recover in this action. It is claimed, however, that the equipment company failed to comply with the provisions of Section 1465-98, General Code, and therefore is not entitled to the benefits of the Workmen's Compensation Law. It is only necessary to state that the requirement therein set forth can have no application to the equipment company, for the reason that it is not a company "for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States." This provision quite evidently refers to the Federal Employers' Liability Act, which applies only to common carriers by rail. The equipment company therefore seems to be such a company as would be required to come within the act, and is not in the class of companies which can exercise an option with reference thereto under the provisions of Section 1465-98, General Code. Neither was there any violation of Section 1465-101, General Code, which precludes employers from relieving themselves by securing indemnity from liability companies.
The inclusion of the amount to be expended as premiums for workmen's compensation as a part of the remuneration to the equipment company for the performance of its duties under the contract in question is nowhere prohibited. It follows that the remedy of the plaintiff for any injury sustained by him is that which he has already asserted under the provisions of the Workmen's Compensation Law, and that, under the undisputed facts in the record, he has no right of action against either the Erie Railroad Company or the Youngstown Equipment Company.
The Court of Appeals was correct in its conclusion that the court of common pleas should have directed a verdict in favor of both defendants. Its judgment is therefore affirmed.
Judgment affirmed.
DAY, ALLEN, KINKADE, ROBINSON and JONES, JJ., concur.