Sinkler v. Missouri Pacific Railroad Company

PETITIONER:Sinkler
RESPONDENT:Missouri Pacific Railroad Company
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 133
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: State appellate court

CITATION: 356 US 326 (1958)
ARGUED: Mar 12, 1958 / Mar 13, 1958
DECIDED: Apr 28, 1958

Facts of the case

Question

  • Oral Argument – March 13, 1958
  • Audio Transcription for Oral Argument – March 13, 1958 in Sinkler v. Missouri Pacific Railroad Company

    Audio Transcription for Oral Argument – March 12, 1958 in Sinkler v. Missouri Pacific Railroad Company

    Earl Warren:

    Number 133, Sinkler versus Northern Pacific Railroad Company.

    Cornelius O. Ryan:

    I’m ready for the petitioner, Your Honor.

    Earl Warren:

    Mr. Ryan.

    Roy L. Arterbury:

    I’m ready for the respondent.

    Earl Warren:

    You may proceed Mr. Ryan.

    Cornelius O. Ryan:

    Thank you.

    May it please the Court.

    This is a case under the Federal Employers’ Liability Act.

    The petitioner, Parris Sinkler, was the cook on the private car assigned to the general manager of the respondent, railroad.

    That car came into the Union Station in Houston on March 30th, 1949 at the end of one of the respondent’s trains.

    After it arrived in the station while the petitioner was still aboard the car performing the duties of his employment, the car was switched from one track to another within the station.

    In the course of that switching movement, and because of the negligence of the crew handling the car, the petitioner was injured.

    Now, the crew handling the car as the record shows, were employees of Houston Belt and Terminal Railway Company, which is a corporation, separate from respondent although affiliated within a number of ways.

    Respondent owned 50% of its stock and appointed in effect four of its eight directors, that is 50% of them, and there were a number of common employees.

    (Inaudible)

    Cornelius O. Ryan:

    I do, Your Honor, yes.

    There were a number of affiliations between respondent and Houston Belt and Terminal which we will go into in more detail later.

    Now, petitioner continued to work after his accident being off for some months about a year after it in order to have an operation to repair some of the effects of it, but he went back to work and continued to work on his car.

    He did not consult counsel until more than two years after the accident, and he then discovered that any action by him against Houston Belt and Terminal Railway Company, which would have of course to be a common law action in the State Courts of Texas, was barred by the Texas two-year statute of limitations.But his action against his employer under the three-year limitation statute applicable to the Employers’ Liability Act was still open to him since less than three years had passed.He, therefore, filed this suit less than three years after the accident.

    Now, the respondent’s only defense which is now material is that Houston Belt and Terminal’s employees were the negligent ones, that Houston Belt and Terminal Railway Company was, as to the Respondent, an independent contractor, and that therefore, respondent was not liable for the negligence of the switching crew and not liable for petitioner’s injuries.

    Petitioner obtained a judgment in the District Court of Harris County, Texas, upon a jury verdict which among other things found expressly upon special issues submitted under the Texas practice that Houston Belt and Terminal was respondent’s agent and was not an independent contractor in performing the movement in question.

    That judgment was reversed by the Court of Civil Appeals at Beaumont on appeal and judgment was there rendered that petitioner take nothing against the respondent.

    How much is verdict?

    Cornelius O. Ryan:

    $15,000, Your Honor.

    There is no question on appeal about the amount of the verdict and there was no question on appeal to the Court of Civil Appeals about the amount of it.

    William J. Brennan, Jr.:

    There’s no question about anything except whether or not (Inaudible) illegal.

    Cornelius O. Ryan:

    That’s right, Your Honor.

    William J. Brennan, Jr.:

    No question of negligence or anything else?

    Cornelius O. Ryan:

    No question of negligence or anything else.

    No, Your Honor.

    William J. Brennan, Jr.:

    In other words, if in fact the Belt line is agent for the purpose of the statutes and the verdict should be reinstated, is that it?

    Cornelius O. Ryan:

    Yes, Your Honor.

    That is right.

    Now, the opinion of the Court of Civil Appeals insofar as I can understand it, appears to say that as a matter of law, the Belt here was an independent contractor and that respondent was therefore not liable for the negligence of the switching crew.

    Our position here is three-fold.

    We say first that respondent is liable to petitioner for injuries caused to him while he was in the course of his employment by the persons who are performing respondent’s switching regardless of the precise legal relationship between them, regardless of whether or not by the usual rules they might be deemed independent contractors rather than agents.

    We say further that there is no contract in evidence in this case which makes the Belt an independent contractor while performing switching for respondent.

    But if there were such contract, it would not affect the petitioner’s rights because it would fall within the prohibition of Section 5 of the Employers’ Liability Act expressly providing that any contract or device whatsoever which will enable a common carrier to avoid its liability under the Act is to that extent void.

    And we say, finally, that the question of whether Belt in performing this movement was an agent or an independent contractor was resolved against the respondent by the jury’s verdict, that there was evidence to support that verdict, and that the Court of Civil Appeals had no jurisdiction to reverse the judgment based on that verdict, whether or not it agreed with the jury about the facts found.

    Now, the first main ground on which we rely, and the one I think that is really most important for the disposition of this case is simply that the respondent is liable to petitioner for injuries suffered by the petitioner in the course of his employment when those injuries are due to the negligence of persons performing the respondent’s switching.

    Now, we say that that has always been the case both under the Employers’ Liability Act and that common law before the passage of the Act.

    The case precisely in point, of considerable antiquity, which is cited and discussed at length in our brief —

    You mean therefore —

    Cornelius O. Ryan:

    Yes, Your Honor.

    — you mean therefore that the negligence question is enough if it’s — in spite these employees as to whether the — the companies would make it or not?

    Cornelius O. Ryan:

    Yes, Your Honor.

    I say that it is enough.

    Charles E. Whittaker:

    I don’t understand that (Inaudible)

    Cornelius O. Ryan:

    Yes, Your Honor.

    My point is this, that when the respondent, the Missouri Pacific, entrust the performance of its switching to the crew, the Houston Belt and Terminal, and the negligence of that crew injures petitioner while he is working as an employee of the Missouri Pacific, then the Missouri Pacific is liable to him for that negligence regardless of whether or not from other standpoints, the crew of the Belt might be considered agents or independent contractor —

    Is that on the ground of non-delegability?

    Cornelius O. Ryan:

    Non-delegability, precisely, Your Honor.

    Now, in the case I referred to a moment ago, Floody versus Great Northern Railway and others from the Supreme Court of Minnesota, which was a case decided prior to the Employers’ Liability Act and which does not relate to federal law but simply to the common law on the subject, the facts were almost precisely the same as they are here.

    In that case, Floody, the plaintiff, was employed by the Omaha Railway, and while he was taking one of its engines out of the Union Depot in St. Paul, the engine was wrecked and he was injured because of the negligence of a crew throwing a switch that the engine had to pass over.

    Now, his employer there raised the same defense that respondent raised here.

    It said the Union Depot Company is a separate corporation.

    We have nothing to do with that, we have a merely contractual relationship with it.

    The crew which threw this switch improperly consisted of employees of the Union Depot Company paid by it, given instructions by it.

    We have no control over them, whatever.

    Therefore, we are not responsible to Floody for the negligence of that crew.

    Cornelius O. Ryan:

    But the Supreme Court of Minnesota said it does not matter to the Plaintiff here whether or not the crew, which threw the switch, and which caused his injuries were employees of his employer or employees of Union Depot Company, a separate corporation.

    His employer is liable to him for their negligence because the employer chose to make use of their services upon that occasion in order to get his train out of the station.

    And we say the situation is precisely the same here.

    The Missouri Pacific chose to avail itself of the services of Houston Belt and Terminal switching crews at Houston.

    The record shows that it employed no switching crews of its own.

    It had all of its switching in the Union station done by Houston Belt and Terminal crews.

    As respect to this plaintiff, that’s your point?

    Cornelius O. Ryan:

    As respects to this plaintiff, yes, Your Honor.

    Now of course there are — there are other questions that could be involved which we don’t go into.

    But as respects to this plaintiff, his employer is liable to him for injuries caused in the course of his employment by the negligence of the persons doing his employer’s switching, regardless of what precise arrangements his employer may have made to have that switching done.

    And we say that this case is simply on all force with the Floody case, that it cannot be distinguished and I don’t think that respondent has actually attempted to distinguish it.

    Respondent’s whole argument, as I understand it on this point, is briefly this, that in several cases, this Court has held that in order to be entitled to the protection of the Act, in order to be entitled to sue under it, a plaintiff must be an employee of a common carrier.

    That term is understood in a conventional sense.

    For instance, in Robinson versus the B&O, a Pullman porter could not sue the B&O for his injuries because he was not the railroad’s employee.

    He was the employee for the Pullman Company.

    And there have been several other cases to the same effect.

    Respondent here attempts to say that to draw the inference from those cases that since the employees of the Belt may not have been employees of respondent, so as to be entitled to sue respondent, if they should be injured, that the respondent is not liable for their negligence.

    In other words, they are not only not employees but they are not servants or agents of any description.

    Now, we think that the inference attempted to be drawn is obviously faulty.

    There is no question here that the petitioner is respondent’s employee.

    He is entitled to the protection of the Act.

    He is entitled to sue under it.

    So that at all those cases which go off on the fact that the plaintiff is not an employee of the defendant and is therefore not entitled to the protection of the Act have nothing to do with this situation in which the petitioner is the employee of the respondent and is entitled to the protection of the Act and entitled to sue under it.

    We say that the Floody case and the principles it lays down rather than Robinson versus B&O are governing.

    Now, it is interesting to note that in Robinson versus B&O, the Court saw as a matter of dicta this — this point which I’m making here, because in the opinion of that case, after holding that the Pullman porter was not an employee and was not entitled to sue under the Act, it went on to say it would be absurd that the question is not whether the railroad company by virtue of its duty to passengers of which it cannot divest itself by any arrangement with the sleeping car company would not be liable for the negligence of a sleeping car porter in matters involving the passenger’s safety.

    In other words, the sleeping car porter could not sue the railroad as its employee under the Act, but nevertheless, the railroad might be liable to third parties for his negligence.

    He would be an agent for whose acts — for whose negligent acts the railroad company could be liable.

    Now, another case which we think is fair — in point on the facts, although it does not involve a railroad employee, is Gulf, Colorado and Santa Fe Railway Company versus Shelton from the Supreme Court of Texas.

    That too is a case of some antiquity and was decided by a court composed of Justices Burt, Gaines, Brown and Williams, which I think Justice Clark will agree with me, is generally recognized as having been one of the ablest Supreme Courts ever to sit in Texas.

    In that case —

    Felix Frankfurter:

    Mr. Ryan, how —

    Cornelius O. Ryan:

    Yes, Your Honor.

    Felix Frankfurter:

    — how long ago is the antiquity of the law —

    Cornelius O. Ryan:

    Well —

    Felix Frankfurter:

    Under the (Inaudible)

    Cornelius O. Ryan:

    They sat in the early part of this century, Your Honor.

    They decided this case in about 1906 as I recall it.

    Felix Frankfurter:

    Can you give me personal concept of that method?

    Cornelius O. Ryan:

    As we use precedence these days, Your Honor, they are of some antiquity.

    I think that the term was necessarily viewed in extremely relative sense of course.

    I’m getting the point where 50 years doesn’t seem like antiquity.

    It should be anymore, I can assure you.

    There, the plaintiff was a passenger on a train of the Gulf, Colorado and Santa Fe Railway Company.

    He was injured in the yards of Purcell, Oklahoma by the negligence of a switching crew composed of employees of the Atchison, Topeka and Santa Fe Railway Company.

    That crew at that point, performed as a switching crew for both railroads.

    And the Gulf, Colorado and Santa Fe simply paid the Atchison Company a portion of the expense.

    Now in that case, the trial court — the District Court had instructed the jury as a matter of law that since the switching crew employed by the Atchison Company performed the work of a switching crew for the Gulf Company.

    The Gulf was liable for their negligence, if any, which might have injured the plaintiff.

    The judgment for the plaintiff was affirmed by the Court of Civil Appeals and was again affirmed by the Supreme Court of Texas.

    The court held, as I construe the opinion that quite consistently with the Floody case, the fact that the Gulf, Colorado and Santa Fe had availed itself of the services of that switching crew, made that switching crew as far as the plaintiff was concerned, the servants or agents of the Gulf Company.

    So, the Gulf Company was liable for their negligence in spite of the fact that it was conceded that the Atchison Company had selected and paid these men, that they were on its payroll, and that all Gulf did was to contribute a portion of the expense of running the yard at Purcell.

    Now, we say that there is absolutely nothing in any later case, there is nothing in the Employers’ Liability Act, there is nothing in the law that we have been able to find which would commit, permit or compel the conclusion that the respondent in this case can escape liability simply because it may have made a contract with another company for the performance of switching service.

    Felix Frankfurter:

    The — in the relations between the carrier — between petitioner’s employer in the Belt line and the basis of recovery is part of the relation between those who are negligent and the victim of their negligence.

    That doesn’t rest on any particular doctrine growing out of the Federal Employers’ Liability Act, does it?

    Cornelius O. Ryan:

    No, Your Honor, it does not.

    Felix Frankfurter:

    That — that’s part of the common law of negligence?

    Cornelius O. Ryan:

    Yes, Your Honor.

    Felix Frankfurter:

    Well, in the light of that, would you mind commenting on the Texas cases that are cited on top of page 109.

    I don’t know anything about it but they all seemed to be Texas cases.

    Cornelius O. Ryan:

    Your Honor, they’re all — they’re all Texas cases and they just don’t have anything to do with the point in issue.

    Cornelius O. Ryan:

    Now frankly, I cannot — I could not understand them myself or the relevancy of them.

    There is one which in one view of the case has some relevance, but the respondent has not chosen to urge it here.

    That is A.T.& W.T. Railway Company versus Anderson, 120 Texas.

    That is a decision of the Supreme Court of Texas back about 25 years ago.

    It held that when one railroad leased its line to another railroad under an arrangement approved by the Interstate Commerce Commission and covered by a Certificate of Public Convenience and Necessity from the Interstate Commerce Commission, then the lessor railroad was no longer responsible for the torts of the employees of the lessee railroad, here a passenger had been injured by a conductor and he sued the lessor railroad and the court held he couldn’t recover against the lessor railroad.

    Now, respondent might have attempted to stretch that case in this Court to cover this situation.

    Significantly enough, they haven’t done so in their brief.

    But it seems to me the distinction is clear.

    If there had been an evidence here, a contract between the respondent and the Belt expressly turning over all of the switching to Belt, there were no such contract in evidence.

    But if there had been and if the Interstate Commerce Commission had approved the contract and had issued a Certificate of Pubic Convenience and Necessity covering the operations under it, then you might have here the same question that was present in the Anderson case.

    But the distinction is that none of those things are here present.

    There was no contract approved in this case for the performance of switching by the Belt and there was no —

    Felix Frankfurter:

    Would that require — would that require the approval of Interstate Commerce Commission?

    Cornelius O. Ryan:

    It is now.

    It was not at the time this contract was first entered into.

    There is in the record, Your Honor, evidence of and references to a contract which went into effect between Belt and respondent on June 1st, 1950, more than a year after this accident.

    Now that contract was submitted to the Interstate Commerce Commission, the execution of it was authorized and the operations under it were covered by Certificate of Public Convenience and Necessity.

    Felix Frankfurter:

    I’m bound to say — I’m bound to say doesn’t seem to be making any difference.

    For your part, whether for a reason pertaining to railroad such as switching of it has to be approved by the Commission or not so long as the switching of it actually made was not advised soon from what you say that this wasn’t illegal.

    Was this illegal, Mr. Ryan?

    Cornelius O. Ryan:

    No, Your Honor.

    I don’t know of any reason why it should be illegal.

    Felix Frankfurter:

    I just wondered what — what the distinction is (Inaudible) that you candidly say (Inaudible) —

    Cornelius O. Ryan:

    Because that case, Your Honor, based its decision precisely upon the point that the Interstate Commerce Commission had approved this arrangement and that therefore —

    Felix Frankfurter:

    That’s the approval by the Interstate Commerce Commission otherwise relieve an employer or the railroad employees for tort liability which otherwise in the manner of (Voice Overlap) —

    Cornelius O. Ryan:

    Well, I don’t think it could, Your Honor but the Court — the Supreme Court of Texas held that it did relieve of liability to a passenger — not to be perfectly candid about it.

    That’s what they said so that — I am stuck with that decision.

    But I do not believe it has any relevance in this case.

    Now one point also that is of some of interest is that —

    Hugo L. Black:

    Was this employee working (Inaudible) when he was injured?

    Cornelius O. Ryan:

    For the Missouri Pacific Railroad Company, Your Honor.

    He was the cook —

    Hugo L. Black:

    He can’t recover from them.

    Can he recover from anybody for his injuries received by working for them?

    Cornelius O. Ryan:

    No, sir.

    He cannot.

    Hugo L. Black:

    Or the FELA?

    Cornelius O. Ryan:

    No, sir.

    He had no other employer.

    Felix Frankfurter:

    Well he could under your common law and —

    Cornelius O. Ryan:

    He could have sued the H.B.and T. in the common law action in Texas within two years after the date of the accident, Your Honor.

    He didn’t know that until he consulted a lawyer and it was already too late.

    Now, one significant thing we think is that the new — the contract which went into effect June 1st, 1950 between Belt and respondent which was approved by the Interstate Commerce Commission, expressly recited that Belt would perform all switching for respondent as its agent.

    And as the proceedings for the Interstate Commerce Commission show, we’ve made reference to them in the briefs in the record, the parties then took the position and the Commission agreed with them that the relationship prior to that time had been one of agency, that we put that into to convince the jury that the relationship actually was one of agency.

    Hugo L. Black:

    Do you have the language of the FELA?

    Cornelius O. Ryan:

    Yes, Your Honor.

    It is in the brief printed as an appendix, page 21 of our brief, Your Honor.

    Felix Frankfurter:

    If a third party — if a third party — if without justification, an employee of the Missouri Pacific (Inaudible) or whether he could or couldn’t would that — by what law will cover that?

    Cornelius O. Ryan:

    Well, he would sue the third party, Your Honor.

    Now, unless there was something which — which made the employer responsible for the third party’s actions, he could not sue under the FELA.

    He can sue under the FELA only for some negligence of the employer or his agents, servants or employees.

    Felix Frankfurter:

    Are you saying that the fact that your case in effect that the — that the employees of the Belt Line or fellow employees, that’s where it gets down to —

    Cornelius O. Ryan:

    No, it does not get down quite to that, Your Honor.

    We say that the employees of the Belt line, when performing services for the respondent or the agents of the respondent as far as the plaintiff is concerned here.

    Felix Frankfurter:

    Well, ad ho — who were ad hoc (Inaudible)

    Cornelius O. Ryan:

    Well, you put that in that — in that — in that particular context, yes, Your Honor there would be.

    Felix Frankfurter:

    — transaction (Voice Overlap) —

    Cornelius O. Ryan:

    In reference to that particular transaction, they would be fellow servants of his, yes, for whose negligence.

    Of course, the employer is expressly liable and always has been under the Employers’ Liability Act.

    Felix Frankfurter:

    Now, under Texas law who determines whether the Belt line was his agent or is this a question of Texas law whether there is or not or the federal law, is a question for the jury, is that your —

    Cornelius O. Ryan:

    Well, I think in this case, it was a question for the jury Your Honor.

    It was a question of fact about whether they were agents on — in this situation.

    We submitted it to the jury and the jury found them.

    Felix Frankfurter:

    I know you submit it — passed to the Court of Appeals.

    Cornelius O. Ryan:

    Well, the Court of Appeals as I understand its opinion apparently said that there wasn’t any evidence to support the jury’s finding and reversed and rendered for that reason.

    We say that there was evidence to support it whether or not the Court of Appeals would take the same view of that evidence as the jury did as immaterial.

    Hugo L. Black:

    The Federal Act (Inaudible)

    Cornelius O. Ryan:

    Yes, Your Honor.

    Hugo L. Black:

    And you claim that the (Inaudible)

    Cornelius O. Ryan:

    Yes, Your Honor, that the person’s causing the injury whereas to the — as to the petitioner, the agents of his employer here.

    Hugo L. Black:

    That would be federal question as to whether or not he is (Inaudible) within the meaning of the act.

    Cornelius O. Ryan:

    Within the meaning of the Act, yes.

    It would be a federal question, Your Honor, I agree.

    But I think they were — they were agents anyway without respect to any federal question or federal law instead under the common law they were agents for that — for that purpose.

    Felix Frankfurter:

    If you guys sue under Federal Employers’ Liability Act then it would have to be under the federal law of the state court that they’re not agents.

    We can’t independently here overrule the Court of Appeals and if by determination they were not agents unless that’s a federal offense.

    Cornelius O. Ryan:

    Well, since the – the Act expressly uses the term (Voice Overlap) —

    Felix Frankfurter:

    What I’m saying is that —

    Cornelius O. Ryan:

    Yes, I agree, Your Honor.

    If I said anything contrary to start with, I was wrong.

    It is a federal question.

    William J. Brennan, Jr.:

    Mr. Ryan, if this language were not in the FELA, officers, agents or employees, are you suggesting that did not the liability under the first proposition you argued of non-delegable duty?

    Cornelius O. Ryan:

    Well, of course at this language we’re not in the FELA then I presumed there wouldn’t be any FELA, Your Honor and he would better sue under Texas law.

    If the FELA didn’t exist —

    William J. Brennan, Jr.:

    No, I don’t — I don’t mean that.

    Suppose all of — if the Section 51 did not have these words.

    It says negligence of the railroad or of any officers, agents or employees because it did not have the language officers, agents or employee but merely negligence to the carrier and that’s the way it read.

    Cornelius O. Ryan:

    Well, I say that the result would be the same.

    William J. Brennan, Jr.:

    That’s what I thought you’d say.

    Cornelius O. Ryan:

    There still would be negligent to the carrier.

    Cornelius O. Ryan:

    I think the original reason to —

    Felix Frankfurter:

    — that carrier can’t hire switching agents — can’t hire a switching company?

    An independent switching company can do the switching?

    There must be a lot of non-delegation — non-delegable duty.

    Cornelius O. Ryan:

    It can do that, Your Honor but it simply does not relieve it of its liability to its own employees or injured by the negligence of that switching carrier.

    Felix Frankfurter:

    (Inaudible) the passengers that is non-delegable duty towards near the passengers.

    Cornelius O. Ryan:

    Precisely, Your Honor as the Court —

    Felix Frankfurter:

    And — and all the railroads in this country which have switching companies doing the switching allowed them to the passengers and to their employees for the comment of a switching agency.

    Cornelius O. Ryan:

    Well, Your Honor ordinarily —

    Felix Frankfurter:

    What?

    Cornelius O. Ryan:

    Yes, that’s precisely true.

    That — that is what the — the Texas Court said in the — the Shelton case that the — the fact that the Gulf had made an arrangement with somebody else to do its switching did not relieve it — of its liability to its passengers.

    In Robinson versus B&O, the Court says that — that by making an arrangement with the Pullman Company, the Railroad cannot divest itself of its liability to its passengers.

    Felix Frankfurter:

    (Inaudible) to divest itself for its liability to the Pullman employee.

    Cornelius O. Ryan:

    But it never had any liability to the Pullman employee because he was not its employee under the Federal Employers’ Liability Act.

    Felix Frankfurter:

    It sounds like this — the passenger is not an employee of the railroad when it (Inaudible)

    It has a court liability —

    Cornelius O. Ryan:

    But it has — it has a liability to passengers and to its employees to —

    Felix Frankfurter:

    I contest that whatever is non-delegable as employees may not delegable (Inaudible)

    Cornelius O. Ryan:

    I think that is correct, Your Honor.

    And we say here that if it were necessary to go that far that the respondent would be liable to passengers —

    William J. Brennan, Jr.:

    Well isn’t — isn’t it non-delegable for the reason that it has the franchise to perform and run a railroad and to kept — escape its obligations by parceling out parts of the job while running a railroad other than that.

    Cornelius O. Ryan:

    That’s it.

    That’s precisely it, Your Honor.

    There’s a paragraph for the restatement of torts which we cite in our brief which lays down that general principle, that one who has a public franchise cannot relieve himself of tort liability by employing an independent contractor to perform parts of it.

    Now it may —

    Felix Frankfurter:

    It depends on what the obligation as a franchise.

    Cornelius O. Ryan:

    Well the —

    Felix Frankfurter:

    — because the railroad and the railroad franchise doesn’t mean it does a lot of subsidiary services in connection with freight and (Inaudible)

    Cornelius O. Ryan:

    Well — but it’s got to have — got to perform switching in order to run a railroad, Your Honor.

    Cornelius O. Ryan:

    That is a part of its function of transportation as we view it.

    It couldn’t get along without switching crews at Houston when it’s running in and out of Houston.

    It’s got to have them from some source.

    Charles E. Whittaker:

    Mr. Ryan, do you have in Texas or I think if there was on the statute of lessor or lessee subject through the — pertaining to the railroads to the effect that they need a railroad car or a train on the tracks with another stops the owner to contempt that were not his tracks in operation.

    Cornelius O. Ryan:

    No, Your Honor.

    We don’t have such a statute.

    I know there is such a statute in Missouri, I ran into it in briefing this case.

    The same result is arrived at– in — in Texas law.

    The — the Texas cases have held for generations back that a railroad cannot relieve itself of its responsibility for running a railroad by leasing to another except with the approval of the legislature.

    In the early days, our railroads were all incorporated by special acts of the legislature.And when the question arose in those days, it was held that a special act of the legislature was necessary to relieve the lessor of its obligation to run a railroad.

    It couldn’t simply make a contract with the lessee.

    It may be that now that merely the approval of the Interstate Commerce Commission and the Certificate of Public Convenience and Necessity under it would be necessary for that.

    That’s what A.T.and W.T. versus Anderson is hitting at.

    But that simply doesn’t have any relation to this case.

    Felix Frankfurter:

    Because I read that there’s a reason amendment (Inaudible) — its allowance and requirement or —

    Cornelius O. Ryan:

    It is my — it is my understanding, Your Honor that the Transportation Act of 1920 —

    Felix Frankfurter:

    Authorizes.

    Cornelius O. Ryan:

    Authorized and gave the Interstate Commerce Commission jurisdiction over arrangement such as this — with the — thank you.

    Earl Warren:

    Mr. Arterbury.

    Roy L. Arterbury:

    If the Court please, our counsel is now on upheld case as I see it.

    The only reason on the merit is in this Court is because this case was barred for the statute of limitation of two years in Texas if he had sued the company who is at fault.

    This client knew that and I quote the language here to make a claim from the transcript of the testimony.

    Question – In the mean thought — “In the meantime, we’re all about the March 21st, 1952, he went to your lawyer and you decide to file a suit didn’t you?”

    “Yes.”

    “And you didn’t file a suit against the Houston Belt and Terminal Railroad Company, the one you said was responsible for your injury, did you?”

    “No, sir.

    I did not.”

    “And the reason you didn’t file a suit against them, you knew that your cause of action, your suit was barred by two — two-year statute of limitation?”

    “You knew that?”

    “And your lawyer confirmed that?”

    Roy L. Arterbury:

    “And so then you decided you would sue your own company, the company you were working for?”

    “Yes”.

    Question – “Since you couldn’t sue the Houston Belt and Terminal Railroad Company direct, your lawyer told you that you would take a chance and see what you could do by suing your own company.”

    “Yes, sir.”

    That’s why he’s here.

    There’s not anything in the law of the statutes of any State or the statutes of the Federal Government which says that a railroad company cannot employ switching carriers.

    You’ll find switching carriers, terminal carriers in almost every large city in this country.

    Houston was large enough over 50 years ago to accommodate a switching carrier and the Houston Belt and Terminal Railroad Company was organized in 1905 to do and perform the various services were stated in this case.

    They uploaded a $5 million bond issue.

    And how many railroads did it serve?

    Roy L. Arterbury:

    Well, now I think it serves about four or five, four or five railroads.

    So they own each on the stock people there —

    Roy L. Arterbury:

    No, the Gulf, Colorado and Santa Fe owns 25%.

    The Fort Worth and Denver owns 12.5%.

    The Chicago Archive Pacific owns 12.5%.

    Now the Missouri Pacific who — who now owns what four of the railroad companies formerly owned, owns the other 50%.

    Charles E. Whittaker:

    (Inaudible)

    Roy L. Arterbury:

    Pardon?

    Charles E. Whittaker:

    (Inaudible)

    Roy L. Arterbury:

    Pardon me, Missouri Pacific I should have said.

    Charles E. Whittaker:

    No, I said, does not the Southern Pacific —

    Roy L. Arterbury:

    No.

    No, the Southern Pacific has its own terminals.

    There’s a movement on — well right now in Houston to have all of these roads at the Union station move over and use the Southern Pacific station under arrangements which they’re trying to work out.

    That’s an economic and a business proposition which no doubt will in time work out.

    The railroads have to do something.

    They — they can’t all have switching yards.

    They can’t all have separate depots and facilities.

    And that’s the very reason that they undertook to do it way back 50 years ago.

    And in Houston, this thing had been going on for over 50 years.

    Roy L. Arterbury:

    The counsel has brought out that the arrangement was approved by the Interstate Commerce Commission.

    The Houston Belt and Terminal was organized under — as a corporation under the statutes of Texas.

    There is a statute which gives them the right to franchise, to do the very thing that they’re doing.

    And certainly this proposition that they have asserted here that this is a non-delegable duty can’t hold one.

    The Missouri Pacific Lines contracts to bring freight and passengers from one point to its terminal and another point.

    It just so happens that this terminal in Houston is the yard of the Houston Belt and Terminal Railroad Company.

    And certainly, it’s not illegal.

    It’s done and complies with the law, both the statutory law and the decision law of both the Supreme Court — this Honorable Court and the State Courts of Texas and other States.

    Earl Warren:

    Does the respondent also have a certain measure of controls of these operations and the management of it?

    Roy L. Arterbury:

    Absolutely not of the Houston Belt and Terminal.

    Earl Warren:

    Well, can’t they fire employees?

    Roy L. Arterbury:

    No, no, sir.

    That’s brought out in — in our briefs and it’s quoted and showed.

    The Houston Belt and Terminal in the contract with the H.B. and T. reserved the right to supervise and control all of its operations and to hire and fire its employees.

    Now, that — those were the tests that are laid down in the decisions, and when this — this case had been tried three times, reversed three times.

    The first was a mistrial, personal reason on — by the Court.

    The second was a hung jury over this very fact.

    Counsel introduced over our objection some of these reports.

    I went to the Interstate Commerce Commission, we objected because they did use the word “agent” in the contract.

    Well, we didn’t like that group of the jury because the jury wouldn’t understand.

    And your Court would understand that the agent — the word agent there was used in its general sense and not to specialize then to be involved in this case.

    Now the Court — the Court instructed —

    Earl Warren:

    How about this, Mr. Arterbury, I get the — are there some place that — the Missouri Pacific have the right to discharge employees —

    Roy L. Arterbury:

    Now, here — here’s — perhaps, Your Honor saw in the —

    Earl Warren:

    — idea that they had — they had some authority to direct as to which shipping should be done first and the order of which it was (Inaudible).

    Roy L. Arterbury:

    I don’t think so.

    I think I’m not entirely correct.

    Earl Warren:

    (Inaudible)

    Roy L. Arterbury:

    Now, Your Honor might have seen this, and no doubt counsel has in its brief and it may be announced that the Missouri Pacific in their contract agreement did have this — they have said this, that if at any time, any employee of the Houston Belt and Terminal did anything wrong, became inefficient or guilty of something that a railroad man shouldn’t be guilty of, then they’d have a right to demand that the Houston Belt and Terminal will fire him.

    Now, that’s my point to you.

    Roy L. Arterbury:

    And this — and the opinion of the Court of Civil Appeals touches on that.

    They say, yes, they have a right to demand, but what happens when they do that if they should do it.

    As a matter of fact from one of the managers of Houston Belt and Terminal and said he’d been a miner since 1913 and then never had it been any such exercise of into such variety.

    But here’s what would have happened if that had taken place.

    They have — would have written to the H .B.and T. and say we don’t like one of your — employee did this on an occasion and we don’t think it’s about the employee.

    They couldn’t say now you fire him or we’re going to fire him.

    They can say that.

    All they could do is report the infraction of some duty.

    Then it became a question as to whether or not he should be fired.

    He had a right for a hearing, a representative of his union.

    Now, the H.B. and T have their own contract with the union organizations.

    You have the right to have the representative of union there at the hearing, and if for any reason the union man thought he wasn’t properly fired that he have a right to go before the — the grievance committee.

    So the Missouri Pacific could not have itself fire any of the employees.

    They can hire them, they can’t fire them, they can’t exercise any control over them neither can they exercise any control over the movements of the — of these trains.

    Hugo L. Black:

    Don’t they have a contract that — that the railroad has a contract with Belt that it can fire his officers or employees on this railroad determining incompetent or negligence?

    Roy L. Arterbury:

    You mean, the Missouri Pacific have the right to fire?

    Hugo L. Black:

    Do not — does not — do not — the railroad stockholders of Belt have a contract, once they get (Inaudible) that they can discharge, they can dismiss any of its officers or employees and stockholders if they got incompetent —

    Roy L. Arterbury:

    No, you won’t find that any way in any contract.

    Now — and the — and the Court of Civil Appeals below touched on that and said that was one of the tests, the very reason they couldn’t do it.

    The only way on that is that they can exercise any control of them not as a corporation, not as a railroad company, but as a stockholder.

    And maybe next year, if they don’t like the directions the stockholders meet, and if they can control it, they can let new stockholders — I mean, directors.

    But that’s true in any —

    Hugo L. Black:

    — railroad anything (Inaudible)

    Roy L. Arterbury:

    Well, sure, they charged the railroad.

    They — they have their published tariffs.

    Hugo L. Black:

    Do they have a deficit — deficit every year?

    Roy L. Arterbury:

    Well, now I saw something like that.

    Hugo L. Black:

    (Inaudible)

    Roy L. Arterbury:

    I saw something like — about that in the — in counsel’s brief.

    And the railroad companies, if there is a deficit —

    Hugo L. Black:

    There hasn’t any every year?

    Roy L. Arterbury:

    Well I don’t know whether every year but the chances are —

    Hugo L. Black:

    And the railroad can make it up.

    Roy L. Arterbury:

    If there’s deficit those railroads —

    Hugo L. Black:

    That’s the way they run it.

    Roy L. Arterbury:

    Like — like the stock — the Houston Belt and Terminal also performs services for other railroads other than those who use this — these terminals, these people.

    Hugo L. Black:

    Suppose this railroad — suppose this railroad what makes it a sub-contractor with an agent that runs its engines and the employees have got injured by reason — or other employees are injured by reason of the negligence of the contractors, running the engine around this country, can they do that?

    Roy L. Arterbury:

    It’d be governed by the same law that pertains to every question of when independent contractors involved.

    That’s what an independent contractor is under the law.

    It’s not a statutory matter.

    It’s the common law and this Court and other courts have laid down the tests as to how you will determine whether a man is a direct agent or whether there’s an independent contractor.

    Hugo L. Black:

    You mean the railroad system, but to do its work — it’s operating through independent contractors that thereby —

    Roy L. Arterbury:

    Well, I didn’t understand —

    Hugo L. Black:

    — the FELA —

    Roy L. Arterbury:

    I didn’t understand your question was as broad, I don’t think it could go out and turned over to somebody else the question of operating this railroad.

    Hugo L. Black:

    — one part here and one part there and the FELA not have filed, can they do that?

    Now, sub-contracts told them all sub-contractors operate that way?

    Roy L. Arterbury:

    Well, there you’d have a question of a railroad going out of business and just going to turn its operation over somebody else.

    Hugo L. Black:

    It has 50% of its operation.

    So have somebody else to meet 50% of its operation but in effect every employee worked in the road and (Inaudible), can they do that?

    They’ll be able to escape liability as a railroad or the interest (Inaudible)?

    Roy L. Arterbury:

    As I understand the Court, of course that’s reducing it down to that position and that — that in control —

    Hugo L. Black:

    How much can they delegate of the operation —

    Roy L. Arterbury:

    Well, here’s the — here’s the —

    Hugo L. Black:

    Simply not — not covered by the FELA.

    Roy L. Arterbury:

    I don’t think the Southern — Missouri Pacific could decide it doesn’t want to run one of its trains from Houston to Dallas as we are going to get out of this by turning it over to somebody else and call them an independent contractor.

    I don’t think it could — could do this because its franchised that to do that now, if — if under the law, you could have another corporation under the statutory laws of the State, a State would have a right to incorporate another railroad company to do that.

    It wouldn’t do it of course but if it’s good, probably you’d have a legalized proposition.

    And anything that’s legalized is alright under the — under the law, I think I’ve said.

    But I don’t think Texas or any other State having once have given a franchise to a railroad company to run from Houston to Dallas, 300 or 400 miles would then legalize another carrier as a common carrier and permit it to take over the function of the — of the Missouri Pacific from Dallas and Fort Worth, it wouldn’t do that.

    Roy L. Arterbury:

    But if it should, it could be done.

    That’d be silly and rather ridiculous if — but that’s all about the law.

    Felix Frankfurter:

    Mr. Arterbury, how are you going to expose (Inaudible)

    Roy L. Arterbury:

    Well, on this ground that the — that the tests that are laid down by all the authorities about the common law to fix the difference between an agent, an independent contractor showed conclusively in this case that the Houston Belt & Terminal was an independent contractor and it’s therefore was not a question for the jury to decide.

    And the Court of Civil Appeals, the court below so held —

    William O. Douglas:

    On the grounds there’s no evidence to support it.

    Roy L. Arterbury:

    That’s right.

    Conclusively, those tests were do — who hires your employees?

    Does the Missouri Pacific hire them?

    Who pays them?

    Houston Belt and Terminal.

    Who directs their work?

    Who controls their operation?

    The Houston Belt and Terminal.

    Does the Missouri Pacific or can the Missouri Pacific exercise control over those employees?

    No.

    It’s unequivocal and it’s not contested.

    So we had a motion for an instructive verdict, it should have been given.

    On the second trial of this case, the Court defined agency as — as this, one, who performs duties for another for consideration.”

    We told the Court, “Well Your Honor, a jury will have to answer that under that definition.”

    Yes, an agent.

    On the next trial, the Court gave a correct definition and — and in that, he named these tests.

    When he did that, he should have constructed a verdict because that closed the case.

    The Beaumont Court held that’s right.

    That is the lower court.

    Earl Warren:

    Mr. Arterbury, let’s — let me just read to you something from the petition — on the petition for certiorari because I — because what I have in mind about control and maybe — maybe when we conclude tomorrow morning you could respond to it.

    The fact that the respondent owned 50% of the Belt stock and appointed four of his directors, Record 107 and 124, that various employees of respondent served also sometime without additional compensation as the employees of Belt, Record 139, 162, 176.

    That respondent reserved the right to demand the discharge of any Belt employee obnoxious to it, Record 112, that the respondent insisted that Belt’s team track should not be opened to other railroads in competition with respondent even though Belt might thereby gain revenue.

    Record 181 and 182, that the Respondent admitted in pleadings filed with the interstate commerce that if and the other stockholding lines jointly controlled them that respondent along with other stockholding lines of Belt procured the findings from the Interstate Commerce Commission with the relationship between the respondent and Belt at the time of the accident was one of agency in the state of a vigorous — in the face of a vigorous protest by the Texas and New Orleans Railroad Company, one of the competitors, and the other fact that Belt is nothing more than an instrumentality of responsibility, the other stockholding lines created, permit, perform switching the terminal operations and so — so forth all furnished aptly supported.

    Now those are the things that I have in my —

    Roy L. Arterbury:

    Yes I (Voice Overlap) —

    Earl Warren:

    — question.

    We’ll — we’ll recess now.

    Roy L. Arterbury:

    Yes, sir.