Edwards v. Pacific Fruit Express Company

PETITIONER:Edwards
RESPONDENT:Pacific Fruit Express Company
LOCATION:Congress

DOCKET NO.: 465
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 390 US 538 (1968)
ARGUED: Mar 14, 1968
DECIDED: Apr 08, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – March 14, 1968 in Edwards v. Pacific Fruit Express Company

Earl Warren:

Elijah Edwards, Petitioner, versus Pacific Fruit Express Company.

Mr. Werchick.

Arne Werchick:

Mr. Chief Justice, may it please the Court.

This action under the Federal Employers’ Liability Act was halted in its infancy when summary judgment was granted against petitioner in the District Court.

The judgment was granted in favor of respondent Pacific Fruit Express, the District Court saying that respondent was not a common carrier by railroad and therefore not under the Federal Employers’ Liability Act.

The Ninth Circuit affirmed this judgment explicitly construing the coverage of the Act narrowly and stating so in its opinion, briefed opinion as specifically rejecting what it termed a broader definition of the terms of the Act.

This Court granted certiorari.

The issue essentially before this Court is the question of coverage under the Employers’ Liability Act and whether it is to be decided as this Court has approached similar questions of coverage and also the general application of this Act in the past or whether the question of coverage is to be given a new and narrow technical meaning.

Facts of this suit as it come to this Court are not in dispute.

It is essentially conceded.

The petitioner was employed by the respondent.

He was injured on the job.

He was working in Roseville, California on the yards of the — that are operated by the respondent.

It is a large refrigerator car icing operation.

The facts, of course, describing the specifics of the operation are set out in great detail on the record on the briefs and I will refer to some of them as I proceed, but I don’t think it’s necessary to take the Court’s time to set out all of the facts relating to the description of respondent’s operation.

Sufficed to say at this point that it is not disputed, in fact it is set forth in respondent’s affidavit in the record that petitioner’s job involved the servicing of railroad, refrigerator boxcars, placing of ice, loading and unloading of ice and heaters, and other equipment in and out of refrigerator boxcars, for the purpose of making these boxcars able to carry perishable commodities in interstate commerce.

And about this, it does not seem to be any dispute in the record.

Regarding this — the factual description of Pacific Fruit Express, there is also very little disagreement.

The disagreement between the parties here before this Court seems to be the conclusion to be drawn from this description.

Respondent is described with partial accuracy as a refrigerator car company.

And by the Interstate Commerce Commission statistical reports with also — with partial accuracy as a private car line.

Respondent is owned wholly by two rail haul lines, Southern Pacific and Union Pacific Railroads.

In fact, it is more than a car company because it owns some roughly 25,000 boxcars, refrigerator boxcars and is the largest owner and operator of these cars in the United States.

It dominates what might be called the refrigerator car company industry or branch of the railroad industry if you will.

It represents basically half of that industry in terms of the number of employees, its holding in refrigerator cars alike.

There are seven such companies in the United States, all of them owned by rail haul carriers and operated to service.

The obligations of those rail haul carriers that they’re required by law to provide the care necessary to ship perishables by railroad in the United States.

There are about one million carloads of perishable commodities shipped in the United States each year and respondent in their words originates and otherwise handles about 285,000 carloads, or approximately almost 30% of the nation’s total.

Respondent describes itself in this record as in materials in this record as the nation’s largest operator of refrigerator railcars.

And in 1965, PFE cars moved over one billion miles.

Earl Warren:

Who services the cars themselves?

Arne Werchick:

In this instance, Pacific Fruit Express services its own cars.

And servicing consists — before the trip begins, Mr. Chief Justice, taking a car and making it ready.

In fact Pacific Fruit Express builds the car in many instances.

Maintains the car as required by law to keep its cars in condition to comply with the Federal Safety Appliance Acts, which it does sometimes itself and sometimes by paying another railcar repair installation to do the work for them.

Pacific Fruit Express takes the car and prepares it for service by cleaning it, by taking it to its various plants located in different parts of the west.

Seven, I think it is major plants and several icing stations different points in the country.

And then places the necessary refrigerator or heater equipment in this car and then makes it available to a line haul railroad so that it can be taken out in commodities loaded in.

And now this is not where the service stops however because, Pacific Fruit Express is paid by the mile that the car is used and provides continuous service over this car putting ice in it wherever needed at its various stations across the United States or altering the character of the service.

The shipper may call Pacific Fruit Express directly to alter the character of the service.

They invite this in their advertising literature.

They list in the telephone directories.

And Pacific Fruit Express keeps their cars spotted all the way across the United States and can order them diverted.

The shipper request this, nor sent to Chicago and if the shipper wants it to go to Los Angeles instead, the shipper is invited to call PFE.

It is not told to call the line — haul line necessarily.

He can call either, and PFE will have that car diverted.

They give the necessary instruction and the car will be diverted.

Earl Warren:

Who makes the necessary repairs to the car?

Arne Werchick:

Pacific Fruit Express maintains several repair shops of its own, in which it repairs its own cars and cars of other car companies, rail companies, and the like if paid the standard rates set by the American Association of Railroads.

They will also, if their car happens to be located in an area which is not near one of their own shops but requires repairs, pay the standard rates to another railroad company or repair company to do the repairs in their shop.

As it can be seen from the record, Pacific Fruit Express not only owns but controls, operates, and services this largest freight of refrigerator railcars and trailers in the United States.

Their business revolves around the roughly 25,000 cars that it owns.

But according to the Interstate Commerce Commission Reports which we’ve cited in our brief, Pacific Fruit Express also rents cars from Southern Pacific and Union Pacific to add to its fleet.

Now Pacific Fruit Express, as I indicated, places these cars in rail service by providing them to any line haul railroad in the United States.

They are not private contract line had dealing only with say one carrier, one other carrier being completely subsumed to one part of the business, but rather will deal with any part of the public and any part of the railroad community, and making their cars available and in providing protective services.

They do this by charging approximately 5 cents per mile.

They do not charge, with very rare exception, for term use of the car.

Occasionally, according to their literature, they will rent some cars to a shipper on a monthly basis.

This is what I would call — concede would be the renting or leasing of a refrigerator railcar.

But I would maintain that insofar as it is a standard in the refrigerator car business to charge by the mile that a car is used, this indicates a carriage activity that’s going on a transportation activity, which as I would like to suggest later is crucial in applying with Federal Employers’ Liability Act.

Arne Werchick:

Pacific Fruit Express does more in controlling the distribution of the cars because they also do market research.

They also go out and survey the agricultural needs in the areas early in order to determine how many cars will be needed.

They discuss with shippers where cars have to be provided and where they’ll be needed.

Thurgood Marshall:

Mr. Werchick, any employees of Pacific Fruit touched these cars after they leave the premises?

Arne Werchick:

Well, in one sense yes, Mr. Justice Marshall.

The —

Thurgood Marshall:

Physically touched.

Arne Werchick:

Yes.

Let us say that a car has started from San Francisco to Chicago.

They have icing stations and facilities between San Francisco and Chicago and the —

Thurgood Marshall:

And those facilities are owned and operated by Pacific Fruit?

Arne Werchick:

That’s right.

Thurgood Marshall:

Well, did they ever touch the car or property that is not the property of Pacific Fruit?

Arne Werchick:

As far as I know, they do not.

Thurgood Marshall:

Then how did they get in commerce?

Arne Werchick:

How does Pacific Fruit Express get in commerce or how —

Thurgood Marshall:

How did the employees, they’re not in commerce are they?

Arne Werchick:

The employees themselves, yes, Your Honor.

The employees are in interstate commerce.

The test that this Court has established many times in the language of the Federal Employees Liability Act itself specifically establishes this, does the activity of the employee substantially affect interstate commerce.

If you took him away, would you halt or disrupt the interstate commerce?

I can — I think best cite to the Court is Reed versus Pennsylvania decision which this Court established where a clerical employee who handled blueprints sitting in an office was found to substantially affect interstate commerce because —

Thurgood Marshall:

But if there was a switching accident, it would be an employee of a railroad that would be injured, wouldn’t it?

Arne Werchick:

Not necessarily at all.

These cars have to be switched on and off of the Pacific Fruit Express terminal, Your Honor.

Thurgood Marshall:

I’m talking about when they’re on the line of the Southern Pacific, and one of these cars injures an employee, it would be an employee of the railroad.

Arne Werchick:

Well, I couldn’t say whether that would always be the case or not.

Thurgood Marshall:

Well, it wouldn’t be a Pacific Fruit employee.

Arne Werchick:

I — each — it ordinarily, as I understand it at least in California Pacific Fruit Express has its own yards which are adjacent to or part of other railroad industry set up.

So that they can provide immediate icing service whenever the car is needed or immediate heating service or repair service to refrigerator cars.

Thurgood Marshall:

My man is off of that —

Arne Werchick:

By —

Thurgood Marshall:

— he’s on the line of the Pacific, Southern Pacific railroads.

Arne Werchick:

My understanding is that there would be no reason for a Pacific Fruit Express employee to be out on the tracks in the middle of Kansas or what have you as the train is moving from here to — from San Francisco to Chicago, from here to Chicago.

Thurgood Marshall:

That’s one to point his wording.

Arne Werchick:

I would — if I may add to that statement Mr. Justice Marshall, I think that it’s important to consider the decisions of this Court and other courts which should be confirmly established in the area of terminal, belt and yard companies.

They have been held to be within the Federal Employers’ Liability Act.

And yet there will be no terminal employee on the train as it’s traversing the United States.

In fact, it may never even be a terminal employee on the train per se.

I had occasion to have reference to some of the cases which are cited in our brief.

One particular come — coming from Florida, their District Court where all the employee there did was wash the trains apparently.

Somebody else for the terminal company directed the movement of the train once it entered the terminal facility.

And then what they did they washed it, and cleaned it, and made it ready for the next journey.

Thurgood Marshall:

Well, Pacific Fruit says that these yards are huge and your area is small.

Arne Werchick:

Well —

Thurgood Marshall:

I’m not saying I agree with them.

Arne Werchick:

They also say in their literature that their yard in Roseville is 1 1/2 square miles.

And I maintain that that’s fairly sizeable railroad installation.

The train stations in most of our communities don’t cover much more than that, I don’t think sizably less in many of the smaller communities, I would say.

Hugo L. Black:

How was the —

Arne Werchick:

They own —

Hugo L. Black:

Excuse me.

Arne Werchick:

Excuse me.

Hugo L. Black:

How was the employee injured?

Arne Werchick:

In this case, the employee was injured while he was operating a motor vehicle.

And he was going from one part of the icing yard to an icing dock.

He was not injured on a railroad car itself.

But his work and the work in which he was engaged did specifically involved the making of railroad cars ready for interstate commerce.

Now again under the decisions which this Court has decided under the Federal Employers’ Liability Act, that this does not seem to be required.

Plainly, it does not seem to be required that the employee must be working on a railroad car when he sustains his injury, that was —

William J. Brennan, Jr.:

Well Mr. Werchich, in any event, whatever may have been the employee’s duties and whatever he may have been doing at the time he was injured, your hurdle is to bring this company within the phrase common carrier by railroad under the statute, is it?

Arne Werchick:

Yes.

William J. Brennan, Jr.:

Instantly, may I ask you or I gather that another employees of this company injured at work at some time, are they covered by Workman’s Compensation now?

Arne Werchick:

It is my understanding that this company is covered by California Workman’s Compensation statute but also by the Federal Railway Labor Act, Federal Railroad Unemployment Insurance Act and Federal Railroad Act.

William J. Brennan, Jr.:

Yes but for injuries on the job, at least up till now I gather, employees of this company have had to resort to state workman’s compensation, have they?

Arne Werchick:

Yes, although —

William J. Brennan, Jr.:

And if you’re right that the — this company is a common carrier by railroad, they’d no longer be covered by state workman’s compensation but would be remitted to their remedy under the FELA, is that it?

Arne Werchick:

That’s correct Mr. Justice Brennan.

However, I don’t have any reluctance to urge that position of Congress having declared that that’s the appropriate remedy.

William J. Brennan, Jr.:

I’m not suggesting you do.

I’m just trying to find out up to now in any event —

Arne Werchick:

Yes (Voice Overlap) —

William J. Brennan, Jr.:

These employees for work connected injuries have had to turn to state workman’s compensation, is that it?

Arne Werchick:

That’s correct sir.

Now turning to the question of (Voice Overlap) —

Earl Warren:

Mr. Werchick, I understood you say that from the time the carriage of these perishable articles started until the time they were delivered whether they were in the terminals of the Pacific Fruit Express or whether they were in route.

If there are any repairs even needed to the cars, any mechanical corrections that that is either done by the Pacific Fruit Express or they employ the railroad that they’re on to make those repairs, is that correct?

Arne Werchick:

Mr. Chief Justice, it’s my understanding that they either do the repairs or pay someone for them —

Earl Warren:

Yes, but that’s —

Arne Werchick:

— but repairs are not provided free to them or assumed it by somebody else.

Earl Warren:

Yes.

Arne Werchick:

That’s my understanding.

Earl Warren:

That’s their responsibility.

And if they don’t do it themselves they have to pay the railroad that does it for them.

Arne Werchick:

Or some other car repair —

Earl Warren:

Yes.

Arne Werchick:

— company whoever might do car repairs at that area, yes.

Earl Warren:

Yes, I assume that’s right.

Hugo L. Black:

How long have they been operating?

Arne Werchick:

This company was — went into operation six months after the first Employers’ Liability Act was passed in 1906, and that Act was declared unconstitutional.

Hugo L. Black:

And they’ve been — being paid for injuries by compensation ever since?

Arne Werchick:

Well, I don’t — I think California adapted the Compensation Act early in the 20s.

I’m not sure about that Mr. Justice Black.

Hugo L. Black:

Have any of them ever covered under the FELA?

Arne Werchick:

No, there have been attempts in the lower courts.

These attempts were defeated on essentially the same basis that we now come to this Court.

Reference was had to — earlier expressed prior decisions and some peripheral decisions, early ones by this Court under the FELA.

And in this area alone, as far as I can see, a narrow standard was adapted for coverage by the lower courts which we attack is inappropriate now before this Court.

Hugo L. Black:

Have there been any legislative efforts to get them included under the FELA?

Arne Werchick:

Not refrigerated car companies, no.

There’ve been no mentions of refrigerator car companies insofar as any discussions under the Federal Employers’ Liability Act they’re concerned in Congress.

William J. Brennan, Jr.:

Well, what are the standards by which you suggest we should gauge whether this company is a “common carrier by railroad”?

Arne Werchick:

Well I think first of all, Mr. Justice Brennan, you could just take the phrase itself if they’re a common carrier and they act by means of rails —

William J. Brennan, Jr.:

Yes, but the language is common carrier by railroad, is it?

Arne Werchick:

That’s right.

But as — I think that perhaps most clearly pointed out, I believe it was the Hammarstrom decision, which is cited in our briefs in Missouri Appellate Court that the language is simply stated.

The words by railroad referred to nothing but the instrumentality, the type of industry that Congress was talking about.

There’s no magic to the phrase by railroad.

It refers in fact in the early days the word used to be used to mean nothing but a highway, a particular type of road, only this was a steel road rather than a concrete one.

William J. Brennan, Jr.:

Well, and you said — you say, “All you have to show was that it’s a common carrier because it does use railroads”.

Arne Werchick:

Right, either it uses nothing but —

William J. Brennan, Jr.:

Well, now how — why do you say it’s a common carrier?

Arne Werchick:

It is certainly common or public in its structure.

It deals with all railroads, all line haul railroads indiscriminately.

William J. Brennan, Jr.:

Is this — is it a business regulated by the ICC?

Arne Werchick:

Its rates, in a sense, essentially they regulate it.

They must file —

William J. Brennan, Jr.:

Well, these are — are the rates of this company or the railroad rates that are regulated, which?

Arne Werchick:

The contracts between the railroads and the so-called private car companies must be filed and approved by the Interstate Commerce Commission and do not become effective until approved.

They have since 1940, have the authority to command these companies to turn over their books, provide information and cooperate in investigations so that they can determine what the rates should be.

Arne Werchick:

Now, they have a central rulemaking power over the rates and practices of refrigerator car line.

William J. Brennan, Jr.:

Well, is this company obliged to provide these cars to every railroad that commands them?

Arne Werchick:

They so indicate in their affidavit which is filed that they will provide these cars to any railroad.

William J. Brennan, Jr.:

Oh, I know, but are they obliged by law to provide the Penn Central with some of these cars if the Penn Central needs them?

Arne Werchick:

I believe this may be more by custom in the industry.

I don’t know whether the law has in fact had to reach the question of whether one car company must provide its cars to all other railroads.

They just do it and always have done it.

William J. Brennan, Jr.:

Are they licensed as common carriers?

Arne Werchick:

I don’t believe so.

Well, they can’t deny their common of public calling.

As I pointed out in the brief, there’re such things as their advertising where they talk about to the public “Just call us.

We’ll take care of these services anywhere on the west”.

They list in telephone directories all over the United States under the heading “Railroads”.

They describe themselves —

William J. Brennan, Jr.:

Well, ordinarily there wasn’t — there was something rather defined about how you bring a carrier within the classification of common carrier?

Arne Werchick:

No.

I —

William J. Brennan, Jr.:

Was it?

Arne Werchick:

The only language of this Court on that subject, Mr. Justice Brennan, has been the statement that they need not hold themselves out to the public at all and can still be a common carrier.

That if they perform a vital transportation service in railroad transportation, that makes them a common carrier by railroad.

And I have reference to the terminal company and the stockyard and beltline railroad cases.

The fact that they acted as agent for a common carrier line haul operation and took some of the burden from the shoulders of that railroad and in the sense divided up the labor, made them part of a system of common carriage by railroad.

This concept goes back as far as the Southern Pacific Terminal Case of — I think 1908 where a terminal that did nothing but provide normal terminal facilities and wharfage was held to be under the Interstate Commerce Commission jurisdiction because the Court at that early stage said, “You can’t allow railroads to go out dividing up into small parts (Voice Overlap) control”.

William J. Brennan, Jr.:

Well I am — didn’t we have a — we had a terminal case, I forgot the name, I think it was (Inaudible) or another one.

Arne Werchick:

Pardon?

William J. Brennan, Jr.:

Where are the words they —

Arne Werchick:

Three years ago?

William J. Brennan, Jr.:

Where a railroad employee was injured on a dining car or something while the car was in the terminal and the injury was brought about because one of the terminal switching engines have struck the dining car.

But there as I recall it we turned it on the question whether a vital part of the operation of the railroad had been turned over by the railroad companies that set up the union terminal.

I forgot the name of that, (Inaudible) was it, or something?

Arne Werchick:

It doesn’t come immediately in my mind, Your Honor.

Here, there’s no question to the vital part of a railroad operation that has been turned over to Pacific Fruit Express.

The railroads are required by law to provide —

William J. Brennan, Jr.:

Well, is that (Voice Overlap) —

Arne Werchick:

— its refrigerated service.

William J. Brennan, Jr.:

All that it seems to happen here is that the railroads want — they want to provide a refrigerated car service, instead of manufacturing or buying their own refrigerated cars, lease them or how do they get them?

Some way they contract for them from this company, is that right?

Arne Werchick:

Precisely, instead of buying them themselves because they would be legally obligated to do and servicing and operating them and controlling them and maintaining them and repairing them and building them themselves, they’ve setup a separate company to do this under a separate incorporation, but is doing nothing but the business of the railroad is legally compelled to do.

Byron R. White:

You mean all — that sorts of equipment to railroads are under the same rule?

Arne Werchick:

No.

Byron R. White:

What makes these under that — under?

Arne Werchick:

That — Mr. Justice White, this company is a common carrier.

Byron R. White:

Well, I know you keep saying that, but what —

William J. Brennan, Jr.:

That’s what you have to prove.

Arne Werchick:

It —

Byron R. White:

That’s the question, and what distinguishes this lessor of equipment from other lessors of equipment to railroad?

Arne Werchick:

The degree of involvement in the interstate transportation of goods is essentially what it is.

If a company merely builds cars and sells or rents them on a term basis maintaining no control and not operating them and not getting into the carriage business itself, it’s obviously not a carrier because it’s not creating risks and hazards in the railroad industry in that sense.

But this company is doing a part of the active transportation work from the carriage of goods.

Byron R. White:

Are freight forwarders subject to FELA?

Arne Werchick:

No they’re not, not generally unless they were to — separate terminal operations.

Byron R. White:

Well, they have to obliged to the public, to their services are very widely and they collect the shipments and divide them up, assemble them and put them on — and all the railroad does is carry them?

Arne Werchick:

Yes Your Honor but as I pointed out in my brief —

Byron R. White:

Would you be making the same argument about that?

Arne Werchick:

No, as I put it on my brief, they stand in the relation of — to the carrier as basically a shipper.

They’re nothing but a bulk shipper collecting the smaller parcels from the individual shippers and putting them together in a large package and delivering them to the railroad.

If you took them away from the railroad industry, the industry would go on as it is, except the shipper would have the problem having to get his goods down to the station himself, the same with the express company.

But you if take away the refrigerator car operation, there’s just not going to be any shipment of fruits or vegetables or other perishables in the United States.

Abe Fortas:

Are there any other operations to which this principle would apply?

How about the tank people who transport oil and gas by railroad tank cars, is that done by the railroads or is that an operation like this Fruit Express Company?

Arne Werchick:

I think Mr. Justice Fortas that it’s done more — with my understanding and I’m not as informed in that area, I’m talking at the top of my head but I think it’s done more by standard lease to the line haul carrier.

And I think the line haul carrier is offering —

Abe Fortas:

So far as you know this would — the application of this principle for which you’re contending would be confined to this company?

Arne Werchick:

That it might overlapping to the area — I see that as a transportation service —

Abe Fortas:

By the common carriers.

I see.

Arne Werchick:

Alright

Abe Fortas:

But those two – under that, those are the only ones to which you can think of to which this would apply?

Arne Werchick:

Yes.

I don’t think it need to apply any further than this.

Earl Warren:

Mr. Corrigan.

John J. Corrigan:

May it please the Court, Mr. Chief Justice.

I’d like to make a brief comment of my position and then I would like to answer some of the questions that Your Honors have asked.

William J. Brennan, Jr.:

Before you start, do you remember that name of the case that I’m trying make —

John J. Corrigan:

Yes, the case is Sinkler versus The Missouri Pacific.

William J. Brennan, Jr.:

That’s right.

Do you have — you don’t cite it.

Do you have the —

John J. Corrigan:

No, I —

William J. Brennan, Jr.:

Sinkler is that it?

John J. Corrigan:

Sinkler, S-I-N-K-L-E-R versus the Missouri Pacific.

William J. Brennan, Jr.:

Thank you very much.

John J. Corrigan:

Our position is this, if it please the Court.

The Pacific Fruit Express is not a railroad in the sense that we understand it.

And the legislative history and judicial history of this Court very clearly establishes what is a common carrier by railroad for the purposes of the Federal Employers’ Liability Act.

That’s the first point I wanted to make.

The second point is, there is no need and no reason for this Court to want to strain or to extend the coverage of the Federal Employers’ Liability Act because of the specific directives of Congress and because in my view and as I put forth in the brief, it is an inferior remedy for these men who are covered by California workman’s compensation and I will address myself to that later.

William J. Brennan, Jr.:

Has that been challenged before this?

I mean, this coverage under workman’s compensation?

John J. Corrigan:

This problem trying to pull themselves up by their own bootstraps by saying — because what he’s doing looks like railroading, it must be railroading.

William J. Brennan, Jr.:

Well, now what — is that — reading here, I — now I recall it but we said in Sinkler it was.

Its manifest that the corporate autonomy of the belt railroad and its freedom from detailed supervision of its operations by respondent there, the Missouri Pacific, are irrelevant in as much as the switching (Inaudible) of the belt railway at the moment of the collision in the station was engaged in furthering the operational activities of respondent.

John J. Corrigan:

The respondent in that case, Justice Brennan, had a non-delegable duty.

When you are an employer of a railroad men and you’re a rail carrier, you have a duty to that man no matter who hurts him if he’s on the job and that’s what happened in the Sinkler —

William J. Brennan, Jr.:

And you can’t turnover — you can’t escape it by turning over operational activities to somebody else.

John J. Corrigan:

That is correct.

William J. Brennan, Jr.:

And you say that’s not what’s done here under this arrangement between this railroad and the respondent (Voice Overlap)?

John J. Corrigan:

In our case here?

William J. Brennan, Jr.:

Yes.

John J. Corrigan:

No, that’s not what’s done.

I will expand on that in a moment.

Thurgood Marshall:

But how about these railroads, some of them have their own icing operations.

John J. Corrigan:

Yes sir.

Thurgood Marshall:

Are they under FELA?

I would think they are.

John J. Corrigan:

If it is a railroad that does their own icing services, that’s a part of their railroad activity, I’d — I have seen no reported case.

Abe Fortas:

Well —

John J. Corrigan:

I would assume that they come under the Act because they are employed by a railroad.

And the key test here and the reason that the case of Reed versus Pennsylvania Railroad that we’ve cited is so important is this.

The test is not what the man is doing at a particular moment.

We’re not going back to the moment of the injury test that this Court was faced with before the 1939 amendment to the Federal Employers’ Liability Act.

What we’re involved here as was pointed out in the Reed Case, you recall that was a case where a lady was high up in a building, a clerk in Philadelphia someplace, and there was a cracked window, and the wind came, and pane broke, and it cut her face.

This Court said that you don’t have to have calluses on your hand or soot on your face or cinders in your hair to become under this Act.

You have to be employed by a common carrier by railroad.

That is the test.

Now, I’d like to direct myself to the — to what are the activities of the Pacific Fruit Express.

The Pacific Fruit Express as indicated has 4,000 employees who have been under the benefits of workman’s compensation for many years in California and other states in the west.

It has —

Earl Warren:

Are there any states that where — they do not come under the —

John J. Corrigan:

No sir.

Earl Warren:

— the —

John J. Corrigan:

They all —

Earl Warren:

— workman’s compensation laws?

John J. Corrigan:

They all come under workman’s compensation.

Earl Warren:

In every state?

John J. Corrigan:

Yes, Your Honor.

Now the Pacific Fruit Express Company is a company which leases or grants, as you will, on a mileage basis refrigerator cars.

And it supplies what are known as protective services in connection with that leasing or renting of railroad cars.

By that is meant, it supplies ice, it supplies mechanical equipment in the cars to refrigerate perishables or to keep the temperature up in case of cold weather to preserve the perishables.

It does not switch cars for any railroad.

It does not switch cars for the public.

The only place that it has any track is within the confines of its own plant where it services its cars — plants I should’ve said.

Now it — of necessity would have to have tracks within plant because it services its own railroad cars and then they have to be placed on rails to move them about within the plant area.

It has no switch engines other than two light engines used within its shops at Roseville and Tucson, Arizona to move the cars around within the shop.

So in this sense, it has —

Earl Warren:

Within who’s shop?

John J. Corrigan:

Its own shop Your Honor.

Earl Warren:

Its own shop.

John J. Corrigan:

These locomotives never leave the shop.

And this is why this is important.

You know, there have been other cases in lower courts involving the Ford Motor Company, General Electric, Armco Steel where in these companies had intra-plant railroads.

And the question was since they have a railroad running within the plant, they must come under the Federal Employers’ Liability Act.

These cases are set forth in our brief.

The point was though, and the decision was in those cases.

These are all federal district cases.

I believe one of them is a Circuit Court decision.

It was that because they’re running a railroad doesn’t make them a common carrier by railroad that this — so in those cases, even though they actually had an operational railroad, it never left the premises of the industry involved and wasn’t treated as a common carrier.

William J. Brennan, Jr.:

Tell me Mr. Corrigan, when the Railway Express Agency, I don’t think it’s any longer just confined to Railway Express, I think that they do general express business now.

But when they used the just — an adjunct to the railroads, as I recall it Railway Express Agency was owned, lock, stock and barrel by the railroad, wasn’t it?

John J. Corrigan:

Yes sir.

William J. Brennan, Jr.:

Now, they used to have cars, do they not, their own cars?

John J. Corrigan:

Yes sir.

William J. Brennan, Jr.:

And did they sometimes have their own employees working on their cars?

John J. Corrigan:

Yes sir.

William J. Brennan, Jr.:

And were there employees within or without the FELA?

John J. Corrigan:

No sir, they were not within the Act.

And then in our brief, you have — someone asked this question, before I want to direct your attention to the case of Wells Fargo versus Taylor and Baltimore and Ohio, Robertson versus Baltimore & Ohio.

William J. Brennan, Jr.:

Was no question that Railway Express Agency was a common carrier?

John J. Corrigan:

That’s correct.

William J. Brennan, Jr.:

But it was not a common carrier by railroad.

John J. Corrigan:

That’s correct.

William J. Brennan, Jr.:

And is that — was that uniformly the holding as to Railway Express —

John J. Corrigan:

That’s correct.

William J. Brennan, Jr.:

Agency employees?

John J. Corrigan:

Yes sir.

Now this Court held in Robinson versus Baltimore & Ohio that —

Hugo L. Black:

Where is that report?

John J. Corrigan:

That’s in the brief, Your Honor.

And it’s the United States — it’s this Court’s opinion, it’s reported in 237 U.S.

And I should call your attention also to Wells Fargo versus Taylor in 245 U.S.

Now these cases held this that a Pullman porter in the Baltimore & Ohio case, a pullman porter working on an interstate train moving in interstate commerce did not come within the Act, because the Pullman Company was not an interstate carrier by railroad, unanimous opinion of this Court.

In Wells Fargo versus Taylor, unanimous opinion of this Court, it was held that an express company employee did not come within the Act.

So far as the question of freight forwarders, Mr. Justice White, that was decided in the case of Lafsco.

I don’t remember the name of the defendant therein but it appears in our brief and it was specifically held that freight forwarders do not come within the Act because they are not common carriers by railroad.

Now what I’d like to do at this point is to go through very briefly the legislative and judicial history so that you can see that this Act was intended for operational railroads in the sense that we understand it.

The Act was first passed in 1906 and it was held unconstitutional, because at that time, the first Act and I believe this is very important said this, “That this Act shall apply to every common carrier engaged in trade or commerce”.

In 1908, this Court held that that first Employers’ Liability Act was unconstitutional.

And one of the things this Court pointed out was it applies to too many companies.

It applies not only to railroads but ferries, bridges and things of that sort.

And that’s — so the Court held that unconstitutional.Congress cited the Court’s opinion in the first Employers’ Liability Act case in their reports and then amended the statute to say it applies only to common carriers by railroad.

John J. Corrigan:

This Court then had brought before it the second Employers’ Liability Act case in 1912.

And at that time, this Court said, “Yes, it only means common carriers by railroad”.

And they referred to the first Act which was held unconstitutional which went too far.

Now after that second Employer’s Liability Act case in 1912, there was the Baltimore & Ohio case, the Robinson case, wherein this Court said it doesn’t apply to porters.

There was the Wells Fargo versus Taylor where it said it doesn’t apply to express company employees even though they may be working on trains.

Then there was a trilogy of cases which are very important under the Interstate Commerce Act.

And on this subject Mr. Justice Brennan, this company is not controlled or answerable to the Interstate Commerce Commission except that it has under a 1940 amendment to the Interstate Commerce Act, it has to supply uniform accounting method.

That’s the only control that the Interstate Commerce Commission has over refrigerator car companies.

William J. Brennan, Jr.:

How about the Safety Appliance Act to get to the (Voice Overlap) —

John J. Corrigan:

The Safety Appliance Act does not apply, Mr. Justice Brennan to this kind of company for this reason.

The Safety Appliances Acts are directed to common carriers by railroad who in their service carry such cars.

Now if we build a car, we have to make sure it has a safety appliance because the railroad won’t carry it.

But the United States attorney when he brings an action for a violation of the Safety Appliance Act does not and cannot, under the law, bring in against a refrigerator car company but must bring it against the carrier who’s carrying it in commerce.

Hugo L. Black:

But suppose the railroad does carry it and it has defective brakes —

John J. Corrigan:

Yes sir.

Hugo L. Black:

— which are in violation of the Safety Appliance Act.

John J. Corrigan:

Yes sir.

Hugo L. Black:

Would the railroad be liable for an injury?

John J. Corrigan:

Yes sir.

Hugo L. Black:

The railroad itself?

John J. Corrigan:

Yes sir.

William J. Brennan, Jr.:

The — would it be liable to an employee of your company who happened to be aboard the car —

John J. Corrigan:

With the railroad sir?

William J. Brennan, Jr.:

— of your company at the time?

John J. Corrigan:

Would the railroad be liable to my company?

William J. Brennan, Jr.:

Yes.

That year,–

John J. Corrigan:

My com —

William J. Brennan, Jr.:

Well, let me ask you this way first.

Perhaps, do you ever have situations where employees of your company, Pacific Fruit Express Company, are aboard cars of Pacific Fruit Express Company while in transit on a railroad?

John J. Corrigan:

No, I know —

William J. Brennan, Jr.:

You never did.

John J. Corrigan:

No, in the yard, they are right in the yard —

William J. Brennan, Jr.:

Yes.

John J. Corrigan:

— where they’re icing the car, the answer is yes.But once it leaves the yard, they don’t ride the train sir.

William J. Brennan, Jr.:

Alright, now suppose you had a defect in violation of Safety Appliance Act in the yard?

John J. Corrigan:

In the Yard?

William J. Brennan, Jr.:

Yes.

John J. Corrigan:

We do not come under the Act.

The Act is very specific to Safety Appliance Act it applies to those carriers who pull those trains without equipment on it.

That’s the first three words of each section of the Safety Appliance Act.

Hugo L. Black:

Well supposes — employee is injured while it’s in the yard from a defective brake?

John J. Corrigan:

Yes sir.

Hugo L. Black:

Would the railroad be liable to the person who was injured?

John J. Corrigan:

PFE employee is injured in the yard?

Hugo L. Black:

Any employee, it’s on this — doing his work.

John J. Corrigan:

Yes sir.

Hugo L. Black:

And there’s a defective brake.

John J. Corrigan:

Yes sir.

Hugo L. Black:

Would anybody be liable?

Would the railroad or the company?

John J. Corrigan:

The comp — the Pacific Fruit Express, Justice Black, would be responsible to its own employee under California workman’s compensation.

Hugo L. Black:

Yes, but what about the railroad?

John J. Corrigan:

The railroad —

Hugo L. Black:

Is not that a non-delegable duty?

Is a duty to keep those brakes so they’ll be working?

John J. Corrigan:

If the railroad is at that moment hauling or has taken the car in its possession, the railroad then is liable to its own employees for such defects and —

Hugo L. Black:

But would not be liable to the others if they were there on the basis that it’s a non-delegable duty?

John J. Corrigan:

The non-delegable duty Mr. Justice Black runs only when it’s your own employee.

You do not have a non-delegable duty to someone else’s employee.

Earl Warren:

May I ask this question, Mr. Corrigan?

If your — if we follow your argument, would that mean that the railroad company, any railroad in the country could divest itself from its responsibility its — to the employees who are servicing cars and so forth by having an organization such as this for all of its rolling stock so that the company that’s in a comparable position to the Pacific Fruit Express would have all of the cars and then lease them to the — as they do here.

John J. Corrigan:

I don’t know the answer to that but I have to say —

Earl Warren:

Well, it’s a (Voice Overlap) —

John J. Corrigan:

— if you followed the logical —

Earl Warren:

To put it (Voice Overlap) —

John J. Corrigan:

— extension of my argument that if a railroad leased all of its equipment —

Earl Warren:

Yes.

John J. Corrigan:

— to someone else, I think what would happen at that point Mr. Chief Justice is that the railroad couldn’t — then would be turning over its operational activities that the totality of its operation.

It couldn’t avoid responsibility in that manner.

I don’t (Voice Overlap) —

Earl Warren:

But it may not — if it doesn’t test to a lesser degree that it can do that and relieve itself of responsibilities that it otherwise would have.

John J. Corrigan:

I think that —

Earl Warren:

Now this is a pretty big operation here.

John J. Corrigan:

Yes sir.

I think there is a point at which it cannot divest itself and avoid responsibility.

Earl Warren:

Where would that point be?

John J. Corrigan:

I don’t know sir.

I think that if they turned over their entire stock to someone else to run it, they couldn’t avoid the Federal Employers’ Liability Act.

Earl Warren:

Well, I suppose if they can do this with the Pacific Fruit Express which has — what is something around 35 or 40% of all of this kind of traffic in the country, if it could do it for this one, it could do it for all of them who are in that same business and could it relieve itself in that whole classification with business by — in a arrangement of this kind?

John J. Corrigan:

If it was limited, I believe it could, Your Honor.

Earl Warren:

Well, and then suppose they decided they do it with the oil business, could they do it that way?

John J. Corrigan:

Well, as I say —

Earl Warren:

And then if they did — could do that, could they do it with general cargo until they had made arrangement of this kind where they weren’t liable for anybody’s employees unless shared some of the responsibilities of the federal law?

John J. Corrigan:

Well, I believe — carrying my argument towards extension, they could do it to a certain degree.

But I feel that after they got so far that they would be turning their operations over to someone else and that would be seen through.

I would like to point out Your Honor that the Aguirre case in the District Court of Appeals in California discussed this question of when the Pacific Fruit Express was founded.

It was founded in 1907, but it had nothing to do with the Federal Employers’ Liability Act.

That’s made very clear by the decision in the Aguirre.

They weren’t trying to avoid responsibility when they set up this company.

Earl Warren:

Well, I know, but we have to judge it by what possibilities of the Act are completely.

John J. Corrigan:

Now, I would like to go on though, because I was telling the Court about these cases that occurred —

Abe Fortas:

Mr. Corrigan, I’m sorry to interrupt you again but I’m concerned because there is a short difference apparently between you and petitioner’s counsel.

The — his brief says that your client is required to maintain its railroad equipment in compliance with Federal Safety Appliance Act.

You say that is not correct?

John J. Corrigan:

No, what I think I said Your Honor is that we have to maintain our equipment so that it satisfies the requirements of the Federal Safety Appliance Act, because a railroad —

Abe Fortas:

I thought you said just the opposite?

John J. Corrigan:

I said we weren’t liable under the Federal Safety Appliance Act, Your Honor.

Abe Fortas:

Well, you’re subject to its terms as a matter of law not in terms of business partisans.

John J. Corrigan:

No, not as a matter of law we are not.

But we wouldn’t do business with anyone because railroad couldn’t take our car if it didn’t satisfy the requirements of the Act.

Abe Fortas:

So that I should read this it is required in petitioner’s brief in terms of a business matter?

John J. Corrigan:

Yes sir.

Abe Fortas:

And next, your petitioner’s counsel says that your client is subject to the Railway Labor Act, is that right?

John J. Corrigan:

That’s correct.

Abe Fortas:

Railroad Retirement Act?

John J. Corrigan:

That’s correct.

Abe Fortas:

And the Railroad Unemployment Insurance Act?

John J. Corrigan:

That’s correct.

Abe Fortas:

All right, thank you.

John J. Corrigan:

This is very important to my case and that’s what I was just getting into now, Mr. Justice Fortas.

After these refrigerator car companies cases in around 1920, this Court held in a unanimous opinion that in three refrigerator car cases which I have cited, that they are not common carriers by railroad.

Congress must have known of these cases because they had great impact.

The Interstate Commerce Act was amended in part as a result of it.

Now with the knowledge of this Court’s unanimous holding in three refrigerator car cases and in the other two cases I mentioned, in the decade of the 30s, there was a lot of railway legislation.

I’ve cited in page 15 of my brief seven laws that got passed or amended and in every law from 1934 to 1939, they specifically included refrigerator car companies.

And the most notable example was the Railway Labor Act.

The Railway Labor Act in 1934 was amended to include refrigerator car companies because they had never come under the Act before and Congress wanted them under the Act.

And Congress was aware of these prior decisions of this Court.

So they amended the Railway Unemployment Insurance Act.

John J. Corrigan:

They amended the Railroad Retirement Act three times to bring them in within its coverage.And then in 1939 they had hearings set out on page 14 of my brief when they gave specific determination whether they should extend the Federal Employers’ Liability Act to include lesser companies other than common carriers by railroad.

There was specific discussion on this issue.

And Congress specifically decided not to extend it.

And the only railway Act that I know that doesn’t include refrigerator car companies is the Federal Employers’ Liability Act.

I think this is very significant.

And I think it’s —

William J. Brennan, Jr.:

Well, now Mr. Corrigan, I’ve read this 12 to 14, wasn’t that colloquy limited to the Pullman Company employees and express company employees with those —

John J. Corrigan:

Yes Your Honor.

William J. Brennan, Jr.:

I mean, was there any special reference to refrigerator car company in for it?

John J. Corrigan:

No sir, but Your Honor — Mr. Justice Brennan I believe when you read that it has to be read in the context of the history I set forth.

William J. Brennan, Jr.:

Yes.

John J. Corrigan:

They knew about refrigerator car companies.

That’s why in 1940, the year after they amended the Federal Employers’ Liability Act, they passed an Act amending the Interstate Commerce Act.

I believe it’s Section 114, sub (b) when they said that refrigerator car companies systems of account and accounting methods had to meet this Commission’s approval.

But beyond that we’re having no jurisdiction over you.

So Congress knew about refrigerator car companies and they brought it under every railway law there was, but when they got to the Federal Employers’ Liability Act, it was discussed.

The railway labor was there and they said no.

Now this history that I’m trying to relate here has been very significant in the past decisions of the Third Circuit, the Ninth Circuit set forth there and the California Court and in the Utah Court.

This influenced them.

They said Congress did not intend these companies to come under the Act.

Now —

Earl Warren:

We decided this case with the petitioner, would this — would it automatically take all of these employees and all the states of the union out of the Workman’s Compensation Act?

John J. Corrigan:

It would Your Honor under this Court’s decision.

And a recent decision in Gollesby versus United States Steel in 379 U.S. and in a very important decision in 244 U.S. called Winfield versus New York Central.

They’re cited in my brief the Winfield case.

Yes, this is — you would take — there are 4,000 other people working for Pacific Fruit Express.

You would automatically divest them of their rights under California workman’s compensation.

And I think that as it’s pointed in some of these prior refrigerator car company cases, this is not something that the other courts have been willing to do lightly, because it’s pointed in great detail I believe in my brief.

The California workman’s compensation statute is simply a superior remedy for a working man.

Now, we’re not just limited — ourselves here to Elijah Edwards but what about these other people?

John J. Corrigan:

For example, under this statute, Elijah Edwards could go back to trial if I’m wrong and he comes under the Act and he could lose this case because we’re still talking about negligence in this statute.

And I think this was indicated that negligence and proximate cause in the FELA variety is still part of the law, this Court so held in Bal — Inman versus Baltimore & Ohio.

Now —

Hugo L. Black:

What did the Winfield Case decided then?

John J. Corrigan:

The Winfield Case decided that the remedy for an employee of a common carrier by railroad is the FELA and it is exclusive.

Hugo L. Black:

Is that all it held?

John J. Corrigan:

I believe so, Your Honor.

Earl Warren:

Exclusive, is that just against the employer or?

John J. Corrigan:

Yes, yes Your Honor.

The — this — you see in (Voice Overlap) —

Earl Warren:

Yes, but that will — could it be exclusive so far as the employer is concerned but not as against the third person?

John J. Corrigan:

Yes.

Yes, Your Honor, you see these employees, I can only speak for California because that’s where I practice.

They all have a remedy against in third party tort if someone else is responsible.

But they only have one remedy against their employer and that’s under the railroad employee comes under the FELA if anybody else would come to —

Hugo L. Black:

Am I wrong in thinking if the Winfield case —

John J. Corrigan:

What’s that sir?

Hugo L. Black:

Am I wrong in thinking that the Winfield case has been subjected to pretty severe criticism since that time?

John J. Corrigan:

I can say that I have found none.

Now I may have been derelict to my research but I have found none sir.

There’s one other thing I want to —

Hugo L. Black:

And I’d like to ask you this one more question.

I hate to take up your time.

You do not have here the case of a car injury from a defective appliance?

John J. Corrigan:

No sir.

Hugo L. Black:

So that I would suppose, maybe your best answer to that would be that you don’t have that case.

But suppose you had it, why would not the Sinkler Case apply?

John J. Corrigan:

Because in Sinkler it was acknowledged when — that this man worked for the Missouri Pacific Railroad, a common carrier by railroad.

The case started out.

Hugo L. Black:

I thought we held, I maybe wrong, I had read it.

Hugo L. Black:

But I thought we held that that power could not be delegated so he became an employee of the railroad for the purposes of that case?

John J. Corrigan:

No, he sued his own employer, if I have the Sinkler Case in mind.

Hugo L. Black:

Yes.

John J. Corrigan:

Now there’s one other thing —

Hugo L. Black:

There was another one decided right after.

Do you remember what that was?

John J. Corrigan:

No.

William J. Brennan, Jr.:

Sentilles I think?

John J. Corrigan:

There is another point I want to make here because the question was asked by the Court and is one of the —

William J. Brennan, Jr.:

Well actually, I gather looking at Sinkler.

There I think you’re right.

The employee who was injured who was an employee of the Missouri Pacific, but his injury was brought about by the negligence of the employee of the terminal company.

John J. Corrigan:

Right.

William J. Brennan, Jr.:

And the problem was whether the terminal company was an agent of the Missouri Pacific within the word agents in the Act, wasn’t it?

John J. Corrigan:

Yes, but you don’t even —

William J. Brennan, Jr.:

And we said that the railroad couldn’t delegate —

John J. Corrigan:

Right.

William J. Brennan, Jr.:

— the operational activity there involved —

John J. Corrigan:

Right.

William J. Brennan, Jr.:

— to another company and escape liability to its employee injured by the negligence of an employee of the other company —

John J. Corrigan:

Right.

William J. Brennan, Jr.:

— wasn’t that it?

John J. Corrigan:

Right.

You don’t have to go to the question of the agency because there’s a non-delegable duty and if I may —

William J. Brennan, Jr.:

Well here as I understand it though, here what we have is not so much that.

The question here is as it might have been there, whether or not if the employee of the belt railway had been injured.

The belt railway was a common carrier by railroad.

John J. Corrigan:

Yes sir.

Potter Stewart:

That’s the kind of problem this case, isn’t it?

John J. Corrigan:

Yes, but that reason is the next point I wanted to get to and it’s this Your Honor.

John J. Corrigan:

Some mention was made here of belt liner terminal line railroads.

They are not like the Pacific Fruit Express and they distinguishable.

They rely on the Parden decision.

Now — and they rely on the Brooklyn Terminal.

These cases are cited in the brief.

Now a terminal railroad like the Parden or like Brooklyn in those two cases, they run a little railroad at the end of the line where they make up, break up trains, cross city streets.

They have a marshalling yard.

They switch for the public.

They switch for other carriers.

They take care of the railroad operations in —

Potter Stewart:

Well Parden was whether a state owned railroad.

John J. Corrigan:

Right.

Potter Stewart:

Was for the purposes of FELA common carrier by railroad, —

John J. Corrigan:

Correct.

William J. Brennan, Jr.:

— isn’t that it?

John J. Corrigan:

That’s the correct analysis of Parden, but they choose not to follow that analysis.That was what Parden turned on.

I see my time has expired, (Voice Overlap) —

Earl Warren:

You may finish the sentence that you are on.

John J. Corrigan:

I just wanted to say this then if I can finish this sentence.

Earl Warren:

Yes.

John J. Corrigan:

They make a quotation from Parden and they say this in their brief.

It’s important to know about it.

They say — Parden says this, “The Federal Employers’ Liability Act is at least as broad as the Safety Appliance Act and the Railway Labor Act.”

In the Parden case, the reason this Court made that decision and that statement a couple of years ago is because out in California, we have a belt owned railroad in San Francisco.

And it comes under the Railway Labor Act and it comes under the Safety Appliance Act.

And in Parden, you said that they come under the FELA the — so that was what that statement was about, a state owned railroad as such.

Thank you very much.

Earl Warren:

Mr. Werchick.

Arne Werchick:

I’d start to point out that under California Public Utilities Code 211 which is cited in our brief, the word common carrier under California law specifically includes refrigerator and car renting corporations.

Secondly, the question of Federal Safety Appliance Act, the Safety Appliance Act is directed to the vehicles themselves, to the instrumentalities.

Arne Werchick:

In your decision of the United States versus California, this Court said, it could go after the belt line.

It didn’t have to wait until it got on to a full line haul railroad in order to enforce that Act in considering that decision at its narrowest.

It stands for the proposition that the holder of the vehicle and anytime that somebody is injured, or anytime the unsafe practices found is the person responsible.

This is perhaps the most aptly illustrated in the Florida case that I mentioned earlier, McCullough versus Jacksonville Terminal also cited in the briefs.

There, the terminal company did nothing with the car except clean it.

They moved it for the purpose of servicing it.

It was defective under the Safety Appliance Act.

Suit was brought under the vehicle of the FELA.

And recovery was allowed even though there was no transportation involved in that sense, merely the cleaning of the car making it ready for transportation.

The question of what happens if the railroad divests was raised.

Suppose it gives away what’s — we maintain is really what it’s doing here.

And this is answered in part or at least by analogy in Section 57 of Title 45 which is also part of the FELA.

And it says that a common carrier for the purpose of that Act is anybody, a receiver or a lessee or anybody.

It says carrying out the operations of a common carrier by railroad.

And that Section has never been used to decide a coverage case.

I might suggest in my mind that it might be perfectly adequate to decide coverage cases because it says anybody performing the function of a common carrier by railroad and it doesn’t say a bit of the function of a whole function.

William J. Brennan, Jr.:

Well, what do you do with the Railway Express and the Pullman and the freight forwarders and all those?

Arne Werchick:

Taking the two cases that —

William J. Brennan, Jr.:

I mean how are those different from this (Voice Overlap)?

Arne Werchick:

They don’t operate by railroad.

In Wells Fargo which is the leading express company case and the one that’s responsible for so many of these coverage questions —

William J. Brennan, Jr.:

Well, Railway Express as I recall it used to have any number of its own cars, owned by it, carried by the railroads, and manned by Railway Express employees.

Arne Werchick:

In the Railway Express case, it’s discussed I think from the Fifth Circuit, I’m not sure Your Honor.

It specifically says it is a common carrier but because of the lack of railroad equipment it’s just not operating by railroad.

Now I —

Potter Stewart:

How about the Pullman Company?

Arne Werchick:

The Pullman Company is an anachronism as far as the Robinson versus Baltimore & Ohio Case.

But Robinson merely said, he couldn’t sue B & O because he was employed by the Pullman Company.

He was not an employee of Baltimore & Ohio.And the FELA gives a remedy only to an employee of the carrier.

That was an agency case essentially or a joint servant question.

Arne Werchick:

Now granted there was a sort of an assumption that stated in that case and I maintain that it’s not a valid assumption that you can never have two common carriers by railroad working together.

Thurgood Marshall:

Well, what does Pacific Fruit Express carry by rail?

Arne Werchick:

Among other things, they carry three million tons of ice every year.

Thurgood Marshall:

On rail?

Arne Werchick:

They use for their own purposes.Yes, and they load and unload it at their yards and —

Thurgood Marshall:

And how many miles of track do they have?

Arne Werchick:

That’s not in the record, enough to fill up one and a half square miles in Roseville anyway.

Thurgood Marshall:

One and a half square miles of rail?

Arne Werchick:

We know that there’s an — there’s rail running back and forth and I could only guess —

Thurgood Marshall:

So that’s (Voice Overlap) —

Arne Werchick:

— how much rail there is at Roseville alone.

Thurgood Marshall:

That makes them a carrier by rail.

Arne Werchick:

Well —

Thurgood Marshall:

Pacific Express.

Arne Werchick:

Yes, Your Honor.

On the same sense that the Lone Star Steel Company with only rail inside its own plant or a terminal company that only has a railroad station where it washes the railroad car or the Union Stockyard Company which does nothing but unload beef is a common carrier by rail.

Thurgood Marshall:

The terminal does more than wash cars.

It moves cars, box them up, switches them.

The individual employee was injured while the car was being washed, but it was no question that the terminal railroad was a railroad.

Arne Werchick:

Again I can only —

Thurgood Marshall:

Is that right?

Arne Werchick:

I — not as I read the McCullough decision in that particular instance.

And also the McCabe versus Boston Terminal where they had no tracks of their own — I mean no engines of their own, no cars of their own.

They merely gave signals to the engineer to move the car one way or another.

Thurgood Marshall:

What’s the difference between a fruit expressed car and Pullman car insofar as being moved by rail?

Arne Werchick:

I think they’re both carriers in the transportation service by rail.

Thurgood Marshall:

Oh, then you disagree with the Pullman case?

Arne Werchick:

Robin — with the Robinson case?

Thurgood Marshall:

Yes.

Arne Werchick:

Insofar as it might be assumed to hold that, yes.

Arne Werchick:

Although it can be distinguished as an agency or joint employment case, it doesn’t have to be reached.

Certainly I feel that that is definitely carriage and transportation.

And I feel that Mr. Willis in the general counsel for Pullman in testifying before Congress in 1939 so stated but then made an artificial distinction that they weren’t a common carrier even though the ICC classifies them as a transportation agency, yes sir.

Earl Warren:

Mr. Werchick, if we decide with you, do we wipe out the protection of all these 4,000 employees under the Workman’s Compensation Acts of all the states of the Union?

Arne Werchick:

Yes Mr. Chief Justice, but you bring them within the federal social legislation that covers this railroad industry in terms of pension benefits —

Earl Warren:

I was just —

Arne Werchick:

— and injury benefits —

Earl Warren:

I was just asking if that is a–

Arne Werchick:

— but yes.

Earl Warren:

— is the alternative.

Arne Werchick:

Yes, that’s the alternative to workman’s compensation.

Earl Warren:

I see.