Magenau v. Aetna Freight Lines, Inc.

PETITIONER:Magenau
RESPONDENT:Aetna Freight Lines, Inc.
LOCATION:U.S. District Court for the Southern District of New York

DOCKET NO.: 439
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 360 US 273 (1959)
ARGUED: May 18, 1959
DECIDED: Jun 15, 1959

Facts of the case

Question

  • Oral Argument – May 18, 1959 (Part 1)
  • Audio Transcription for Oral Argument – May 18, 1959 (Part 1) in Magenau v. Aetna Freight Lines, Inc.

    Audio Transcription for Oral Argument – May 18, 1959 (Part 2) in Magenau v. Aetna Freight Lines, Inc.

    Earl Warren:

    Mr. Illig you may proceed.

    William F. Illig:

    Mr. Chief Justice may I please the Court.

    The petitioner in this case seeks a reversal really on the basis of one decision of this Court, the case of Byrd versus the Blue Ridge Cooperative, in which the majority opinion was written by Mr. Justice Brennan last year.

    And I just like to take a half a second to show that the Bryd case was completely different from this in the whole situation so that there won’t be any confusion in the Court’s mind, because in the first place in the Byrd case the only evidence of statutory employment, which was the issue there, was presented on behalf of the defendant and all of it was withdrawn from the consideration of the jury, and the Court of Appeals decided as a matter of law that the plaintiff was a statutory employee.

    Here on the other hand, all of the evidence of petitioner’s emergency employment was brought out by petitioner as part of his own case and it was not only all submitted to the jury, but it was submitted in the form of a special interrogatory presented by the court, which the jury answered in the affirmative and the Court of Appeals said, in the words of Judge Goodrich, “Thus the matter turns in the final analysis on a question of fact, that is a sufficient state of emergency to justify the enlisting of another to help assist in the business to be done.

    The jury’s finding is a forthright answer to a forthright question.

    The trial judge who heard all the testimony was satisfied — satisfied with it.

    We do not think on this state of the record that we would be justified in setting it aside.”

    And the Court of Appeals in our case adopted the jury’s finding of fact and applied applicable principles of Pennsylvania law and held that petitioner’s remedies were in workmen’s compensation.

    Now it’s been said that the whole defense of workmen’s compensation was an affirmative defense of the defendant, but I think and I believe you will agree when you study the whole record, that a very peculiar situation developed in this case, which was responsible for petitioner developing the whole matter of the emergency employment and not as in the Byrd case, where the defendant sought to show that the plaintiff was a statutory employee.

    When you see the complaint you will find that it was not drawn in the terse federal notice type of pleading, but instead it was in a the detailed form followed under Pennsylvania practice and there it was alleged simply that Ormsbee the decedent was a guest passenger of the defendant invited to ride by Schroyer the driver.

    There was no reference to willful or wanton conduct, there was no word about emergency hiring, but at pretrial for the first time the petitioner became aware that workmen’s compensation was going to come into this case, you will find that mentioned at page 11 of the pretrial notes, and petitioner also became aware that if he were merely an invitee of the driver or a guest passenger, he would be a trespasser as to the defendant Aetna Freight Lines for this reason.

    Hugo L. Black:

    May I ask you a question, you said page 11 of the pretrial?

    William F. Illig:

    Pretrial notes.

    Hugo L. Black:

    So that is page 11 —

    William F. Illig:

    No I beg your pardon Your Honor that is not printed in the record there.

    The pretrial notes I simply said that’s were workmen’s compensation first came into the picture.

    So what I was going to say was, he knew he would be a trespasser as to the defendant Aetna for this reason and this is important.

    Schroyer the driver, and I think it’s already been commented upon by Mr. Schneider, had been forbidden to take any rides.

    There was a no rider sign on the windshield of the truck.

    The ICC regulations forbade riders under those circumstances, therefore if he was a simply rider or guest passenger of the driver, he would be a trespasser as to Aetna and he couldn’t recover on the basis of ordinary negligence, but would have to show willful or wanton misconduct, which under Pennsylvania law means a conscious disregard of known danger.

    So the petitioner tried his case on two new theories, and I’m bringing this out not because there was any objection to it on the behalf of the respondent at the trial, but to give the background.

    First, that if Ormsbee the decedent were a trespasser, the defendant Aetna was guilty of willful or wanton misconduct even though that hadn’t been alleged in the complaint, but it had been brought out at the pretrial.

    Secondly and more important Ormsbee was an emergency employee of the defendant Aetna.

    Now, this is important too.

    At that time the petitioner thought he was on perfectly safe ground in bringing the matter of emergency employment into the case as part of his own proof.

    (Inaudible)

    William F. Illig:

    There was, they found there was wanton misconduct on the part of the defendant, although the Court of Appeals did not find it necessary to meet that point because of the disposition on the first, because we had contended that there wasn’t sufficient evidence of wanton misconduct here to have submitted the issue to the jury under established Pennsylvania law, since there wasn’t any showing of a known disregard or conscious disregard of known danger, it was simply a matter of defective brakes.

    So as I say, they proceeded to show emergency employment.

    For this reason they thought they were safe.

    William F. Illig:

    That the petitioner or rather Ormsbee could not be a statutory employee of the defendant Aetna under Pennsylvania law because the accident didn’t occur on the premises.

    But as Judge Goodrich pointed out in his opinion, what petitioner overlooked was Section 104 of the Pennsylvania Workmen’s Compensation Act, whereby emergency employees are included within the definition of employee.

    So then the petitioner proceeded to develop all of the facts surrounding how Ormsbee came to be on the truck instead of simply showing that an accident happened, the truck went over the embankment and both men were killed.

    He showed that Ormsbee was hired for $25 by Schroyer as an assistant to help him in the performance of his duties which he was unable to perform for the balance of the trip.

    The emergency was that Schroyer had, had brake trouble and mechanical trouble and expected more, and he said he needed someone to help him to carry on for the balance of the trip.

    This was part of the plaintiff’s proof, and this is also a very significant circumstance which hasn’t been commented on.

    The plaintiff’s own proof showed, that Ormsbee the defendant helper or assistant was on this truck not for just a couple of minutes, not in a rescue operation or anything of the sort, but for a distance of over 100 mile from 100 to 125 miles during which this time this truck and its cargo were being moved towards its destination and it was over a period of five or six hours, he was riding there as a helper before this accident happened.

    That is a very important circumstance.

    Again it was proved by the petitioner’s own evidence.

    The only dispute at the trial centered around one thing, the respondent took the position that the emergency, that the petitioner was contending was not the type of emergency, which under Pennsylvania substantive law would have given the driver implied authority to hire an assistant, and now at the —

    May I ask Mr. Illig?

    William F. Illig:

    Yes.

    Might there not have been a finding here of implied authority in Fidler’s interest?

    William F. Illig:

    No, I was just going to come to that and I want to say that right now, because as you know the first finding which is the crucial one, the controlling one, the one that the Court of Appeals adopted and used it as the basis of its opinion in applying applicable Pennsylvania law was about the emergency.

    The petitioner takes the position that this — it did not follow from this finding that he was an employee of Aetna the defendant rather than of Fidler, and I believe that is the question Your Honor is asking.

    Yes.

    William F. Illig:

    Number one bear in mind that in the complaint it was alleged that Schroyer the driver was the servant, agent and employee of the defendant Aetna.

    Aetna was the only defendant sued.

    Number two, the only evidence of the hiring which was brought out by the petitioner concerned extra judicial statements of the dead driver Schroyer maybe in this tavern at Waterford to two people in connection with hiring of Ormsbee.

    This was objected to on the part of the respondent at the trial because it was hearsay as to the defendant Aetna, but if you look at the record at page 36 A, you find that the plaintiff’s — petitioner’s counsel Mr. Gornall urged in support of the admission of that very evidence, that it was statements made by Schroyer in the course of his employment.

    Now obviously it couldn’t be in the course of his employment for the — for Fidler, a third party.

    William J. Brennan, Jr.:

    Now may I just interrupt you right there?

    Was not Schroyer in fact hired by Fidler as Fidler’s driver?

    William F. Illig:

    He was hired by Filder that is true.

    William J. Brennan, Jr.:

    As Fidler’s driver.

    William F. Illig:

    As Fidler’s driver, but he was under the control of the defendant Aetna which alone had the ICC certificate.

    William J. Brennan, Jr.:

    Well now may I ask further, not only was he employed by Fidler, but was there not testimony that Mr. Shniderman referred to that indicate that Schroyer in his operation of the truck took his instructions from Fidler, for example he laid up overnight night as I recall at that —

    William F. Illig:

    That’s true.

    William J. Brennan, Jr.:

    On Fidler’s orders.

    William F. Illig:

    That’s right.

    William J. Brennan, Jr.:

    And he went there for repairs to certain repair shops —

    William F. Illig:

    That’s right.

    William J. Brennan, Jr.:

    — on Fidler’s orders.

    And there was also — was it Fidler’s testimony that he authorized Schroyer to employ services or something of that kind?

    William F. Illig:

    That is true, that was in the testimony that in response to a question put by the Court, as to whether Fidler authorized him to employ services and the defendant’s counsel didn’t hear the question and he said, I didn’t get that Your Honor, he said, did you say was the answer servants or services and the answer was only services.

    But there was no evidence that Fidler in anyway authorized Schroyer to employee any servants or assistants.

    William J. Brennan, Jr.:

    What I am — what puzzles about this is, if in fact there was evidence upon which a conclusion of employment by Fidler rather than by Aetna is required, would the Workman’s Compensation Act of Pennsylvania be a defense for Aetna?

    William F. Illig:

    No it would not.

    William J. Brennan, Jr.:

    It would not.

    William F. Illig:

    I wouldn’t say that it would, but I — because I believe that same point was involved in the Byrd case, he had already received workman’s compensation from his immediate employer, but bear this in mind Your Honor, at page 174 A in connection with this very point.

    When they are talking about this first interrogatory that’s going to be submitted to the jury, note what Mr. Knox on behalf of the petitioner said, made it reasonably necessary for the protection of the defendant’s interests, namely the hirer, defendant’s interest not driver’s interests, and then if you get over here to page 184 A.

    William J. Brennan, Jr.:

    Well driver I gather refers to Schroyer.

    William F. Illig:

    Schroyer, correct.

    William J. Brennan, Jr.:

    Well, but it still doesn’t — that’s not a concession that it might not have been necessary in Fidler’s interest, is it?

    William F. Illig:

    I believe it is, because the very first — the wording of the first interrogatory, the first interrogatory said nothing about Fidler, you find that an unforeseen contingency arose which made it reasonably necessary for the protection of defendant’s interest, not Fidler’s interests, that the driver Charles Schroyer engaged the decedent Norman Ormsbee.

    I’d like to point this out further Your Honor that under established Pennsylvania law the restatement Section 79 which is referred to by Judge Goodrich and the Pennsylvania cases, if there is the factual situation where a driver has implied authority to hire an assistant for the protection of his — in the furtherance of the defendant’s interest, that’s the employer, and that emergency exists, then as a matter of law, the person employed becomes the servant of the master.

    In other words once there is the finding and here the specific question was asked, Fidler was not in this lawsuit.

    The question was asked do you find that an unforeseen contingency arose which made it reasonably necessary for him to employ him in furtherance of the defendant’s interest and they said yes to this question specifically.

    William J. Brennan, Jr.:

    But isn’t there some merit in Mr. Shniderman’s position that the fact that he — it may have been necessary to employ him in Aetna’s interest, doesn’t establish that, that employment was in the regular course of Aetna’s business there.

    William F. Illig:

    We’re coming to the regular course of business, and I’ll take that up right now, but before I leave your question Mr. Justice Brennan, if you will look over here also at 184 A in the Court’s charge, this is — this bears directly on the fact too that he is the employee of the defendant.

    The Court says it is a rule, in the middle of the page, it is a rule universally recognized that the relation of master and servant cannot be imposed upon a person without his consent express or implied.

    It is upon this exception to the general rule which is quite as well settled as the general rule itself that the plaintiff relies in this case to establish the relation of master and servant under the evidence.

    Now notice what he says, “the exception of the servant may engage and assist in the case of emergency where he is unable to perform the work alone, but you have to find an emergency on the road confronting Schroyer that night, that he couldn’t go alone and there was reasonable — in his opinion and it was to be expected in interests of the employer that he had the implied authority, he did have the power to engage an assistant and engaged Mr. Ormsbee to go along with him to complete the trip.”

    The only employer that the Court again was referring to was Aetna who was the only defendant sued.

    William J. Brennan, Jr.:

    Now I’ve taken too much of your time, but may I ask one more question?

    William F. Illig:

    Yes sir.

    William J. Brennan, Jr.:

    I understand contemporaneously with this litigation there was pending a workman’s compensation petition.

    William F. Illig:

    That was filed before the trail began and it is still pending.

    William J. Brennan, Jr.:

    And in that Aetna has denied that the deceased was an employee of Aetna, isn’t that right?

    William F. Illig:

    They have denied that they were an employee of Aetna and I might say that in that plain petition they filed against Fidler and against Aetna and against Schroyer, in other words they cover the waterfront, there was a pro-forma denial in view of that.

    William J. Brennan, Jr.:

    Now is that proceeding just stayed pending the —

    William F. Illig:

    That was simply stayed and it’s still open.

    Now you have asked the next very important question Mr. Justice Brennan and that is did it follow the jury’s finding that he was in the regular course of the defendant Aetna’s business.

    I’d like to point out first of all that there was nothing that Your Honor said in the Byrd case to the effect that has been argued here that the statutory language had to be submitted to the jury.

    In that case, you writing the majority opinion stated that the petitioner was entitled to have the factual elements of the defense submitted to the jury.

    Following the argument of Mr. Shniderman it would likewise have been necessary here to submit the question to the jury as to whether the hiring was for valuable consideration, because the words say that, the words of the Act, and yet it was conceded that he hired him for $25.

    Now the questions come in is, do we say that this was the regular course of business only because of the use of the words in the furtherance of defendant’s interest.

    My answer to that is an unequivocal no.

    I want to point out that this answer of the jury to this special interrogatory has to be read in the light of the Court’s instructions and explanation as required by Federal Rule 49B, and also several cases recently decided by the Third Circuit and I don’t believe there is any rule in other circuits to the contrary, to the effect that a special finding must be construed in the light of the instructions given by the Court.

    We say that this was a finding that it was in the regular course of the defendant Aetna’s business because the circumstances were such as to require the hiring by Schroyer the regular driver of Ormsbee to accompany him for the full balance of the trip for Aetna and assist him in the performance of his duties which he was unable to perform alone.

    All of that is impliedly to be read in to this interrogatory submitted to the jury because of the specific instructions of the judge and if you will look at 184 A, which is just before the Court reads the interrogatory, look what he says, in explaining it, at the top of the page, “unless you find in this case, that is emergency arose and it was such an emergency that Mr. Schroyer was unable to perform it alone, that is his duties for the continuance of the trip, because of what has been brought out here, if you accept that proposition that the brakes were bad and that was the type of emergency then he would privileged to take on his assistant Mr. Ormsbee.”

    And he — and then he reads the interrogatory at the bottom of the page and he says the words unforeseen contingency mean the emergency I have just mentioned, the inability of Mr. Schroyer to cope with it alone.

    If you think it reasonable the he engaged in assistance, why you may answer the interrogatory number one.

    My point in that regard is this, regular course of business is statutory language.

    It is not defined in the act.

    It is then the subject of judicial interpretation.

    One of the tests that has been applied, the factual test that has been applied by our Pennsylvania courts throughout, for instance in the case of Smith against the Coal Company it’s not cited in our brief unfortunately, in 86, Pennsylvania superior, Hodger against Walker in 277 PA, is whether a person who is hired, is hired to do the work of a regular employee or is hired to assist a regular employee, those are factual tests of regular course of business.

    The regular course of the defendant’s business as Judge Goodrich said, and I don’t think it can been controverted is transportation of goods by truck.

    Here the truck moved towards its destination with this man riding as a helper for a distance of over a 100 miles before the accident happened, over a period of five or six hours, he was there as an assistant ready to help in case of a breakdown, set out flares, help, summon assistance, protect the load, all these were argued by petitioner’s counsel as a reason for the emergency and permitting of the hire of the assistant.

    William J. Brennan, Jr.:

    But isn’t this also true Mr. Illig, the lessor who was Fidler had an interest here did he not?

    William F. Illig:

    No —

    William J. Brennan, Jr.:

    Well I mean this route as I understand it was — lessor was the owner of the truck and he leased the truck with driver to Aetna.

    William F. Illig:

    Right.

    William J. Brennan, Jr.:

    Well as lessor he had a business interest in having that truck traverse that 100 odd miles didn’t he?

    It may have been on a delivery on behalf of Aetna, but wasn’t that also an interest?

    William F. Illig:

    But bear in mind, and we come back to the fact as to what the Court was explaining the first interrogatory and the terms of terms of the interrogatory alone itself as to whether they should answer in the affirmative or negative as to whether it was in furtherance of the defendant’s interest.

    William J. Brennan, Jr.:

    Well I can understand that it might have been in furtherance of the defendant’s interest, but does not it fairly follow that it was in the regular course of business, that the question.

    William F. Illig:

    Yes.

    It was in the regular course of business, in the light of the Court’s explanation, that if can —

    William J. Brennan, Jr.:

    This much is true isn’t it, that as the holder, you were the holder of the ICC certificates aren’t you?

    William F. Illig:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    And as I understand it, even though you exercise no control over the operation of the rig itself, nevertheless as to reliability to a third party by reason of any misconduct with a negligence or otherwise of the lessor, then even though you reserve no rights of control liability would follow because the lessor was liable isn’t that so, as a holder of the ICC certificate?

    William F. Illig:

    I don’t know if that would follow in the case of negligence of the lessor.

    You mean as far as third party is concerned?

    William J. Brennan, Jr.:

    Yes.

    William F. Illig:

    I would say then probably yes, because the courts have taken the position as a matter of public policy the holder of the certificate has to bear responsibility.

    William J. Brennan, Jr.:

    Well then don’t you think we have that problem involved in this case at all?

    William F. Illig:

    No, I don’t Your Honor, and one point apparently I haven’t made clear to you and that is this.

    All of this evidence of the hiring was admitted against Aetna on the basis of the driver’s extra judicial statements which were objected to as to hearsay.

    Now I would like to know how the petitioners in this case could have gotten those declarations into evidence against Aetna if he was doing the hiring for Fidler a third party, then it would not be in the course of his employer’s business when Aetna is the employer.

    In other words, if would have been the rankest hearsay and the plaintiff wouldn’t have been entitled to their verdict.

    That is one of the most crucial things.

    If you look at 36 A where the defendant is vehemently objecting to this evidence, because Aetna alone is sued and they said no we got to — you should allow this because these were declarations made in the course of his employment for Aetna and if he was doing it for Fidler, then it would be hearsay as to Aetna, and yet that is result of the Your Honor’s conclusion it seems to me.

    Earl Warren:

    Mr. Illig I like to leave the employment aside for a moment, might it not there logically on the question of whether he was a trespasser, when he was on the truck?

    William F. Illig:

    If that conclusion would follow, but it is not the only conclusion that would follow.

    Earl Warren:

    No –-

    William F. Illig:

    In other words if the jury had answered no, there was no such emergency Your Honor, then he would have been a trespasser and the legal principles would have applied.

    If they answer yes it is true that they argue, he is not a trespasser but naturally no employee is a trespasser, but the factual basis of employment was presented to the jury and they passed on it.

    This point I think must be stressed before the Court, because it hasn’t — I haven’t brought it out, that at no time heretofore has the petitioner ever maintained that the factual basis of employment was not passed upon by the jury.

    They have argued that he was not in the regular course of employment only as a matter of law and only after the Court of Appeals decided this case did they come into this Court for the first time and say the factual basis of employment was not passed on.

    Actually this case was tried exactly as the petitioners wanted it, because as far as they were concerned they didn’t want any reference to workman’s compensation in the case, they were confident that the trial judge was going to uphold their contention.

    In fact page at 68 the Court made a statement with regard to compensation.

    He says at the bottom of 68, he says I am not sure how they are going to rest on this proposition of $25, whether he was employee or whether he wasn’t.

    I think that’s a question for the Court, don’t you?

    Mr. Gornall, yes sir.

    In other words whether he is on compensation or not and over at 174 A or 173 A, here is another statement by the Court, in other words the finding of trespasser is a conclusion of law and Mr. Knox for the petitioner says the same as the employees.

    It was only the defendant that sought to bring the question of workman’s compensation directly before this jury by its seven-point per charge which the Court refused.

    But we maintain that the Court of Appeals was correct in applying the facts, in apply the legal principles to the facts that were brought out by the petitioner’s own evidence in this case and there was no dispute about that evidence.

    And that consequently that the petitioner, the family of decedent should be relegated to the remedies which are permitted under the Workman’s Compensation Act and as I say that petition has been and still is pending.

    And when they say that this was decided by the Court of Appeals, Judges Goodrich, Maris and Hasties, three of our best judges I think in our Third Circuit, as solely of the question of law when it is contrary to what is stated here, that it turns on a question of fact we accept the jury’s finding of fact and we are applying the law and as this Court has many times said, it is the duty of — the basic task of the Court of Appeals to apply the law.

    William F. Illig:

    In conclusion I’d simply like to make this point, the petitioner’s case it seems to us comes down to this.

    It’s a case where the petitioner’s own proof developed all the evidence of emergency employment which was in the regular course of the defendant’s business by virtue of applying the principals to the finding of facts and it’s exactly the same as though the petitioner had, had a negligence case and disclosed his own contributory negligence as part of his case, admittedly that is an affirmative defense to be brought out by the defendant, but if the petitioner brings it out as part of his own case then isn’t the Court permitted to apply the principles of law to that binding effect.

    That is our case, Your Honor.

    We feel that as a matter of justice in this case, the petitioners’ proper remedies are in workman’s compensation where they tried to get in as I say even before the trial of this case.

    And that it did not resolve solely as a question of law, but that when you read the finding of fact in the light of the Court’s instructions and all of the evidence that preceded the presenting of the interrogatory, you will see that there was a finding of fact which was adopted by the Court of Appeals as the basis of its decision.