Bourne v. Southern Railway Co.

Denny, J. The exception to the judgment as of nonsuit, entered by the court below, cannot be sustained unless each of the following questions can be answered in the affirmative: 1. Was plaintiff’s intestate, at the time of his death, an employee of the defendant ? 2. If so, was he acting within the scope of his employment? 3. Was the defendant engaged in transporting goods in interstate commerce at the time of the death of plaintiff’s intestate? The plaintiff is not entitled to recover, under the Federal Employers’ Liability Act, unless her intestate at the time of his death was an employee of the defendant, acting within the scope of his employment and the defendant at the time was engaged in interstate commerce. Erie R. Co. v. Welsh, 242 U. S., 302, 61 L. Ed., 319; Illinois Central R. Co. v. Behrens, 233 U. S., 473, 58 L. Ed., 1051; 39 C. J., sec. 402, p. 276; Roberts Federal Liabilities of Carriers, Vol. 2 (2d Ed.), sec. 723, p. 1366; Myers v. R. R., 162 N. C., 343, 78 S. E., 280; Zachary v. R. R., 156 N. C., 496, 72 S. E., 858, 232 U. S., 248, 58 L. Ed., 591; 35 Am. Jur., sec. 515, p. 943; 39 C. J., see. 384, p. 263, et seq. In considering the first question, it will be noted the Federal Act does not define the word “employer” or the word “employee,” hence they are to be considered as having been used in the Act in their natural and ordinary sense. Hull v. Philadelphia & R. Ry. Co., 40 S. Ct., 328, 252 U. S., 475, 64 L. Ed., 670; Macgruder, Collector, v. Yellow Cab Co. of D. C. (D. C., Md.), 1943, 49 Fed. Suppl., 605, 141 F. (2d), 324. The Act, “being remedial, is to be liberally construed to advance the remedy proposed, but it applies only when the relation of master and servant *46 exists.” 39 C. J., sec. 385, p. 266; 35 Amer. Jur., sec. 432, p. 849; Chesapeake & O. Ry. Co. v. Harmon, 173 Ky., 1, 189 S. W., 1135; Pittsburgh C., C. & St. L. Ry. Co. v. Parker, 19 A. L. R., 751, 132 N. E., 372, 191 Ind., 686; Payne v. Lind, 138 N. E., 366, 106 Ohio St., 14; Wagner v. Chicago & A. R. Co., 106 N. E., 809, 265 Ill., 245; Byram v. Illinois Central R. Co., 154 N. W., 1006, 172 Iowa, 631. Tbe fact that plaintiff’s intestate was an engineer, employed by the Southern Eailway Company to operate an engine over the Asheville-Murphy Branch, between Asheville and Bryson City, and had been so employed for a long time prior to 7 April, 1941, does not necessarily establish the relation of master and servant between him and the defendant at the time of his death. The evidence on this record establishes the fact that plaintiff’s intestate was riding the engine on Train No. 17, on 7 April, 1941, pursuant to a permit issued by the company, in order that he might qualify for a position as engineer on that part of the Ashfeville-Murphy Branch, between Bryson City and Murphy. He was in no sense a student engineer. He was an experienced engineer and had been employed by the Southern Eailway Company for approximately eighteen years. He needed no instructions in the operation of an engine. He was present for one purpose and one purpose only — “to learn the road.” For it is admitted that he “was riding said engine for the purpose of acquainting himself with the road, the curves, sidings and any changes that had been recently made in connection with the roadbed.” If he had been qualified and authorized to operate the engine, under the rules of the company, it would have been unnecessary for him to obtain a permit and make this trip, in order to become eligible for assignment as an engineer on that part of defendant’s road. In view of the above facts, we do not think the decisions relative to student engineers and firemen, relied upon by the appellant, are controlling here. In Brown v. R. I. & P. Ry. Co., 286 S. W., 45, 315 Mo., 409, a student fireman was held to be an employee under the Federal .Employers’ Liability Act, because he was subject to the orders of the engineer and fireman, and was required to perform such duties as were assigned to him, although he received no compensation. But in the case of Chesapeake & O. Ry. Co. v. Harmon, supra, the Supreme Court of Kentucky held that a student fireman, who received no wages or other return except information for his services, performed by virtue of a permit to ride on the engine only.of defendant’s trains at his pleasure, although an employee, and entitled to a reasonably safe place to work while performing his duties contemplated by the assignment, was not an employee within the meaning of the Federal Employers’ Liability Act, when killed after he had abandoned his duties as a student fireman and was riding in the caboose. *47 We do not tbink, under the facts presented on this record, plaintiff’s intestate was an employee of the defendant on 7 April, 1941, within the meaning of the Federal Employers’ Liability Act, but at most was a licensee under and by virtue of his permit. He had no duties to perform for or on behalf of the company in connection with the operation of the train, and the engineer was without authority to engage his services for any purpose, except in case of an emergency. Vassor v. R. R., 142 N. C., 68, 54 S. E., 849. The rules of the company, with which plaintiff’s intestate was familiar, provided that the regular engineer, while on duty, must not leave his engine except in case of necessity, and then only in care of the fireman. The evidence shows no necessity or emergency requiring the absence of the regular engineer. Furthermore, there is no evidence to the effect that plaintiff’s intestate was to receive any compensation or other return for making the trip, save and except the information he would obtain for his own benefit. Moreover, conceding, but not deciding, that plaintiff’s intestate was an employee, we think the second question presented should also be answered in the negative. For, as stated in 35 Am. Jur., sec. 437, p. 852 : “It may be conceded that one has no claim upon an employer predicated upon a claim of the breach of a duty charged upon the employer by the Employers’ Liability Act where it appears that the employee was in fact injured while acting outside the scope of his employment, as where he is injured while voluntarily assuming to do something that the employer did not employ him to do,” citing Roebuck v. Atchison, T. & S. F. Ry. Co., 99 Kan., 544, 162 P., 1153, L. R. A. 1917 E. 741; Mellor v. Merchants’ Mfg. Co., 150 Mass., 362, 23 N. E., 100, 5 L. R. A., 792; Elliott v. Payne, 293 Mo., 581, 239 S. W., 851, 23 A. L. R., 706; Myers v. Norfolk & W. Ry. Co., 162 N. C., 343, 78 S. E., 280, 48 L. R. A. (N. S.), 987; Curtis & G. Co. v. Pribyl, 38 Okla., 511, 134 P., 71, 49 L. R. A. (N. S.), 471; Griffin v. Baltimore & O. Ry. Co., 98 W. Va., 168, 126 S. E., 571, 40 A. L. R., 1326. See also 39 C. J., sec. 390, p. 269, and the cases there cited. In the instant case it will be noted that plaintiff does not even contend that her intestate was employed to do what he did do. We think his very presence on the engine under a permit, obtained for the purpose of observing the road, is evidence of the fact that he was not authorized by the defendant to act as engineer on that trip. He knew he was without authority, under the express rules of the company, to assume the duties of the engineer at the time and place he did assume them. Hence, the defendant is not answerable in damages for his death under the provisions of the Federal Employers’ Liability Act. Having reached the conclusions set forth herein, we deem it unnecessary to consider whether or not the defendant was engaged in interstate commerce at the time of the death of plaintiff’s intestate. *48 "We think the judgment as of nonsuit was properly entered. Affirmed.