Clark v. Gulf, M. & N. R.

Sykes, P. J., delivered the opinion of the court. Rufus E. Clark, the appellant (plaintiff), filed his declaration in the circuit court for damages for personal injuries sustained by him while in the employ of the appellee (defendant) railroad company. The declaration in effect alleged that the defendant was a common carrier for hire operating a railroad, the engines and locomotives of which were propelled by steam; that defendant operated a line of railroad, running through parts of Alabama and Mississippi; that it operated a motor car which was propelled by gasoline; that this motor car was used for the purpose of carrying the section foreman and section hands from place to place on the line of railroad so that they might perform their duties; that on the 21st day of July, 1920, plaintiff was in the employ of the railroad as a section hand; that while in the furtherance of this employment he was riding on the motor car when the car suddenly left or was thrown off the track and was wrecked; and that the plaintiff sustained certain injuries because of this wreck. To this declaration a plea of the general issue was filed, and notice was given thereunder by the defendant that it would show that at the time of the injury plaintiff was engaged in interstate commerce, and consequently his cause [635] of action, if any, arose under the federal Employers’ Liability Act (U. S. Comp. St. sections 8657-8665), and not under the laws of the state of Mississippi. Over two years after the injury sustained by the plaintiff, when an action therefor had become barred by the two-year statute of limitation prescribed in the federal Employers’ Liability Act, the plaintiff by leave of court filed a second count to his declaration in which he alleged in short that he was engaged in interstate commerce at the time he was injured, thereby bringing his case under the federal Employers’ Liabiliay Act, and that his injury was caused by the negligence of the master in furnishing an unsafe car upon which to ride; the defect being in one of the wheels of the motor car. To this second count of the declaration the defendant, among other pleas, filed one setting up the two-year statute of limitations. A replication was filed by the plaintiff to this plea in which he alleged that since his declaration was filed before the two years had expired, his cause of action was not barred by the statute, that the second count sets up no new cause of action, but is in reality the same cause of action averred in the first count. To this replication a demurrer was sustained by the court. The plaintiff declined to plead further, and both plaintiff and defendant agreed that the cause of action came under the federal Employers’ Inability Act. Whereupon the court rendered a final -judgment in favor of the defendant. From which judgment this appeal is prosecuted. The question presented by this appeal is a very narroAv one and purely a question of federal law to be determined from a consideration of the decisions of the supreme court of the United States applicable to this question. It is the contention of the appellee that the original declaration was based purely upon a Mississippi statute, viz. section 1985, Code of 1906 (Hemingway’s Code, section 1645), which in short in actions of this character makes proof of injury inflicted by the running of cars, etc., prima-facie evidence of Avant of reasonable skill and [636] care; that the original declaration sets out no facts ’ of negligence upon the part of the defendant or any of its employees, neither does it in general terms state that the negligence of the defendant was the cause of the injury of plaintiff; that this declaration states no cause of action under the common law or the federal Employers’ Liability Act, but only under the Mississippi law and that simply and purely because of this statute. In the case of Hudson v. Railroad, 95 Miss. 41, 48 So. 289, this court there held that a declaration drawn as the original declaration is here drawn was drawn under this section of the Code and stated a good cause of action by virtue of this statute. Under this statute alone was the cause of action stated in the original declaration. Ro facts of negligence of any kind are therein stated, but it is only good because by virtue of this section presumptions are inferred of negligence or liability. This being-true, it is perfectly plain that the original declaration was based upon this statute of Mississippi and not upon the common law nor the federal Employers’ Liability Act. The original declaration is purely a suit to enforce an unusual and exceptional right in derogation of the common law given by this statute. The amendment stated facts for which a cause of action is given either under the common law or the federal Employers’ Liability Act, whichever law governs. By this amendment there was therefore a change from the Mississippi statute in derogation of the common law to the federal Employers’ Liability Act. This is a change or departure from law to law, and therefore the second count states a different cause of action. U. P. Railroad Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, is directly in point and determinative of this question. In that case the converse of the question here presented was before the supreme court of the United States. The court there said: “A suit based upon a cause of action alleged to result from the general law of master and servant was not a suit to enforce an exceptional right given by the law ovf Kan [637] sas. If the charge of incompetency in the first petition was not per se a charge of negligence on the part of the fellow servant, then the averment of negligence apart from incompetency was a. departure from fact to fact, and, therefore, a new cause of action. Be this as it may. as the first petition proceeded under the general law of master and servant, and the second petition asserted a right to recover in derogation of that law, in consequence of the Kansas statute, it was a departure from law to law.” In the case of Railway Co. v. Wulf, 226 U. S. 570. 33 Sup. Ct. 135, 226 L. Ed. 355, Ann. Cas. 1914B, 134, there was a change in form only of the plaintiff, viz. from her individual to her representative capacity. All the facts which gave rise to the cause of action were stated in detail in the original declaration. The court there held that the amendment related back to the filing of the original declaration and therein differentiates the facts in that case and those in the Wyler ease, supra. In the instant case, however, the declaration stated no facts whatever relating to the injury and would have been subject to demurrer if drawn under the federal Employers’ Liability Act. For this reason it was not merely a chance in form but a very vital change in substance. ■ In the Wulf case, supra, it is said: “That, aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he Avas employed by the defendant railroad company in interstate commerce; that this death resulted from the negligence of the company and by reason of defects in one of its locomotive engines due to its negligence.” The original declaration draAvn under this prima-facie statute, if governed by the Mississippi law, would permit the plaintiff to prove the injury and rest his cause, whereupon the defendant Avould have to show all of the facts relating to the injury and that it was not guilty of any negligence which caused it. [638] Under the federal Employers’ Liability Act in the first instance the declaration- must specifically aver the negligence of the defendant and the plaintiff must prove that negligence. A most substantial difference both in pleading, presumptions, and proof. In the case of N. O. & N. E. R. Co. v. Harris, 247 U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. 1167, it was held that in suits of this character negligence is an affirmative' fact which plaintiff must establish and that the question of the burden of proof is a matter of substance and not subject to control by the laws of the several states. Therefore in a suit under this act the Mississippi statute cannot be invoked either to aid the pleading or the proof. In the case of Brown v. Southern Railway, 115 Miss. 493, 76 So. 525, the facts giving rise to- the cause of action were fully stated in the declaration. The only change was one of form, viz. a striking out of the word “intrastate” and inserting therein “interstate,” making the declaration, instead of reading that they were engaged in intrastate commerce, read that it was interstate commerce. In the Broom case the amendment, like that in the Wulf case, was in form only. The correctness of the decision of this court in the Broom case is shown by the decision of the supreme court of the United States in the ease of New York Cent. R. Co. v. Kinney, 260 U. S. 340, 43 Sup. Ct. 122, 67 L. Ed. —, decided December 4, 1922. The judgment of the lower court is affirmed. Affirmed.