Where the federal Employers' Liability Act is applicable, the
state statute on the same subject is excluded by reason of the
supremacy of the former.
Where the Federal Employers' Liability Act applies, no one but
the injured employee or, in case of his death, his personal
representative can maintain the action.
Whether the federal or state statute is applicable depends upon
whether the injuries of the employee were sustained while the
company was engaged and the employee was employed in interstate
commerce.
An employee whose duty is to take the numbers of, and seal up
and label, cars, some of which are engaged in interstate, and some
in intrastate, traffic is directly, and not indirectly, engaged in
interstate commerce.
Interstate transportation is not ended by the arrival of the
train at the terminal. The breaking up of the train and moving the
cars to the appropriate tracks for making up new trains for further
destination or for unloading is as much a part of interstate
transportation as the movement across the state line.
Where plaintiff's petition states a case under the state
statute, but on the evidence it appears that the case is controlled
by the federal statute, and the defendant has duly excepted, the
state court is bound to take notice of the objection and dismiss if
plaintiff is not entitled to recover under the federal statute.
The facts, which involve the construction of the Employers'
Liability Act of 1908, and its effect on actions for personal
injuries of employees brought in the state courts, are stated in
the opinion.
Page 229 U. S. 157
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action against a railroad company by the widow and
parents of one of its employees to recover damages for his death
while in its service in its railroad yard at North Sherman, Texas,
the death being caused, as was alleged, by the negligence of other
employees. The action was begun in one of the courts of the state,
and resulted in a judgment for the plaintiffs, which was affirmed
by the court of civil appeals. 148 S.W. 1099. A petition for a writ
of error was denied by the supreme court of the state, and the
present writ of error to the court of civil appeals was then
allowed.
See Bacon v. Texas, 163 U.
S. 207,
163 U. S. 215;
Norfolk & Suburban Turnpike Co. v. Virginia,
225 U. S. 264,
225 U. S.
269.
A motion to dismiss the writ is interposed, but the grounds of
the motion are plainly untenable, and it is denied.
In the trial court and again in the court of civil appeals, the
railroad company contended that the injuries which caused the death
of the deceased were received while the company was engaged, and
while he was employed by it, in interstate commerce; that its
liability for his death was exclusively regulated and controlled by
the Employers' Liability Act of April 22, 1908, 35 Stat. 65, c.
149, and that, if liable, it was liable only to his personal
representative, and not to the plaintiffs or any of them. This
contention was denied by both courts, and the correctness of that
ruling is the matter now to be considered.
The cause of action sought to be enforced was not recognized at
common law.
Michigan Central Railroad
Co.
Page 229 U. S. 158
v. Vreeland, 227 U. S. 59,
227 U. S. 67. It
was essential, therefore, that it be based on some applicable
statute. There was a Texas statute on the subject, and also the
federal one. Both could not occupy the same field, and they were
unlike. The Texas statute gave the right of action of the
"surviving husband, wife, children, and parents," and provided that
it might be enforced by all of them or by one or more for the
benefit of all; while the federal statute vested the right of
action in the deceased's
"personal representative, for the benefit of the surviving widow
or husband and children of such employee; and, if none, then of
such employee's parents; and, if none, then of the next of kin
dependent upon such employee."
There were other points of dissimilarity, but they need not be
noticed. If the federal statute was applicable, the state statute
was excluded by reason of the supremacy of the former under the
national Constitution.
Second Employers' Liability Cases,
223 U. S. 1,
223 U. S. 53;
Michigan Central Railroad Co. v. Vreeland, supra. And if
the federal statute was applicable, the right of recovery, if any,
was in the personal representative of the deceased, and no one else
could maintain the action.
Briggs v. Walker, 171 U.
S. 466,
171 U. S. 471;
American Railroad Co. v. Birch, 224 U.
S. 547,
224 U. S. 557;
Missouri, Kansas & Texas Railway Co. v. Wulf,
226 U. S. 570,
226 U. S. 576;
Troxell v. Delaware, Lackawanna & Western Railroad
Co., 227 U. S. 434,
227 U. S. 443.
The real question, therefore, is whether the federal statute was
applicable, and this turns upon whether the injuries which caused
the death of the deceased were sustained while the company was
engaged, and while he was employed by it, in interstate commerce.
Second Employers' Liability Cases, supra; Pedersen v. Delaware,
Lackawanna & Western Railroad Co. (decision announced with
this
ante, p.
229 U. S.
146).
The plaintiffs' petition was altogether silent upon that
subject, and the defendant, by appropriate special exceptions,
called attention to the two statutes, insisted
Page 229 U. S. 159
that whether one or the other applied depended upon facts not
stated, and asked that the plaintiffs be required so to state the
facts as to enable it to perceive which statute was relied upon.
The exceptions were overruled, and when that matter came before the
court of civil appeals, it said: "The action was brought under the
state law, and the petition stated a good cause of action, and was
not subject to the exceptions presented." By its answer, the
defendant put in issue the allegations of the petition, and the
evidence adduced upon the trial established without dispute the
following facts:
The defendant was a Texas corporation owning and operating a
railroad extending from the boundary between Oklahoma and Texas
southward through North Sherman. This railroad connected at the
Oklahoma boundary with another one extending northward through
Madill, and the two were so operated that trains were run through
from North Sherman to Madill, and from Madill to North Sherman. The
defendant was engaged in both intrastate and interstate commerce,
much the larger part of the traffic handled in its North Sherman
yard being interstate. The deceased was employed by the defendant
as a yard clerk in that yard, and his principal duties were those
of examining incoming and outgoing trains and making a record of
the numbers and initials on the cars, of inspecting and making a
record of the seals on the car doors, of checking the cars with the
conductors' lists, and of putting cards or labels on the cars to
guide switching crews in breaking up incoming, and making up
outgoing, trains. His duties related to both intrastate and
interstate traffic, and, at the time of his injury and death, he
was on his way through the yard to one of the tracks therein to
meet an incoming freight train from Madill, Oklahoma, composed of
several cars, ten of which were loaded with freight. The purpose
with which he was going to the train was that of taking the
Page 229 U. S. 160
numbers of the cars and otherwise performing his duties in
respect of them. While so engaged, he was struck and fatally
injured by a switch engine, which, it is claimed, was being
negligently operated by other employees in the yard.
At the conclusion of the evidence, the defendant requested the
court to direct a verdict in its favor on the ground that the
undisputed evidence disclosed that the case was one in which the
defendant's liability was controlled by the federal statute, and
that, if liable, it was liable only to the personal representative
of the deceased, and not to the plaintiffs. The request was denied,
and the jury returned a verdict for the plaintiffs, in which the
damages were apportioned among them conformably to the state
law.
In its original opinion, the court of civil appeals took the
view (a) that, by not interposing a plea in abatement, the
defendant waived any right it had to object that the plaintiffs
were not personal representatives of the deceased, (b) that the
plaintiffs were the real beneficiaries, and it was immaterial that
they were not the deceased's personal representatives, and (c) that
the state statute authorized a recovery by the plaintiffs on the
case stated in the petition, and as the federal statute was not
pleaded as a defense, it could not be invoked to defeat a recovery,
no matter what may have been its effect on the state statute. In
its opinion on the motion for rehearing, the court recognized the
supremacy of the federal statute, if applicable, and held that the
evidence did not bring the case within that statute. While
recognizing that the train which the deceased was proceeding to
examine was an interstate train, having just come from Oklahoma,
the court said:
"The North Sherman yards were the terminal for that train; that
is, that was the end of the run of that train. If any trains went
south, they were made up in the yards, new trains, and sent south,
or other
Page 229 U. S. 161
trains made up and sent north. The evidence does not show that
any of the cars in the train coming in were destined for other
points."
In our opinion, the evidence does not admit of any other view
than that the case made by it was within the federal statute. The
train from Oklahoma was not only an interstate train, but was
engaged in the movement of interstate freight, and the duty which
the deceased was performing was connected with that movement, not
indirectly or remotely, but directly and immediately. The
interstate transportation was not ended merely because that yard
was a terminal for that train, nor even if the cars were not going
to points beyond. Whether they were going further or were to stop
at that station, it still was necessary that the train be broken up
and the cars taken to the appropriate tracks for making up outgoing
trains, or for unloading or delivering freight, and this was as
much a part of the interstate transportation as was the movement
across the state line.
McNeill v. Southern Railway Co.,
202 U. S. 543,
202 U. S. 559.
See also Johnson v. Southern Pacific Company, 196 U. S.
1,
196 U. S. 21.
It comes, then, to this: the plaintiffs' petition, as ruled by
the state court, stated a case under the state statute. The
defendant, by its special exceptions, called attention to the
federal statute and suggested that the state statute might not be
the applicable one. But the plaintiffs, with the sanction of the
court, stood by their petition. It was to the case therein stated
that the defendant was called upon to make defense. A plea in
abatement would have been unavailing, because the plaintiffs were
the proper parties to prosecute that case. 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 proved, and the case proved was not pleaded. In
that situation, the defendant interposed the objection, grounded on
the federal statute,
Page 229 U. S. 162
that the plaintiffs were not entitled to recover on the case
proved. We think the objection was interposed in due time and that
the state courts erred in overruling it. 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 Tiffany on Death by Wrongful Act, 2d ed.
§§ 80, 109, 116.
The judgment is accordingly reversed, and the case is remanded
for further proceedings not inconsistent with this opinion, but
without prejudice to such rights as a personal representative of
the deceased may have.
Reversed.
MR. JUSTICE LAMAR dissents.