Opposition Brief — Flores v. Southern Pacific Transportation Co.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

JAVIER FLORES,

Petitioner

V.

SOUTHERN PACIFIC TRANSPORTATION CO., ET AL.

Respondent

On Petition For Writ of Certiorari

To the Supreme Court of Texas

BRIEF FOR RESPONDENT

ARNO W. KREBS Jr.

MBank Building

910 Travis Street

Houston, Texas 77002

(713) 651-5151

Attorney for Respondent

Of Counsel:

FULBRIGHT & JAWORSKI

MBank Building

910 Travis Street

Houston, Texas 77002

BEST AVAILABLE COPY &

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

CASES Page

Aho vy. Erie Mining Co., 466 F.2d 539 (8th Cir. 1972) .. 6,7,17

Ciaccio v. New Orleans Public Belt Railroad, 285

Gin: Sie Gee Gale RO Sb ob bh aves ce cd eens 15,16,17

Duffy v. Armco Steel Corp., 225 F. Supp. 737 (W.D.

i, MD noadnws sce ¢o4tn5y Lavuetheueeasawhees 7

Edwards v. Pacific Fruit Express Co., 390 U.S. 538

SUE ck u's ne ¥vdksveeveusswve bean esapeaeaeeens 6,19

Kelly v. Pennsylvania Railroad, 110 F.2d 4 (E.D. Pa.

1953) aff’d per curiam, 204 F.2d 692 (3rd Cir. 1953),

cert. Gemied, 346 U.S. SEG CT9SS) . cece ecscceccaes 7,8

Lone Star Steel Co. v. McGee, 380 F.2d 640 (Sth Cir.

1967), cert. denied, 389 U.S. 977 (1968) ........... 7-11, 18

Mahfood v. Continental Grain Co., 718 F.2d 779 (Sth

oR Perrier rer eee 7, 13-15, 17

McCrea v. Harris County Houston Ship Channel

Navigation District, 423 F.2d 605 (Sth Cir. 1970), cert.

GEE, SN Aa Rt CET 3g oe vie ncneivaccs 11-13, 17, 19

Picknev v. Oro Dam Constructors, 441 F.2d 806 (9th

Ce ee ao I Si ind oe bade tw weeds 7

Sivils v. Harris County Houston Ship Channel

Navigation District, 462 S.W.2d 352 (Tex. Civ.

App.—Houston [14th Dist.] 1970, no writ) ......... 13

Thurmond v. Armco Steel Corp., C.A. No. H-79-1840

es I bb oe EG i aw owe tewemeeeas 16,17

Ward Transport, Inc. v. Public Utilities Commission,

15) Colo. 76, S76 P.20 PEO CIGEE) «on ccc cic scccess 11

Wells Fargo & Co. v. Taylor, 254 U.S. 175 (1920) ...... 5,6,19

STATUTE

SS UBC. Gh SUED kon 0 ere ee eed os cece vsnvees 2,5,19

il

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

JAVIER FLORES,

Petitioner

V.

SOUTHERN PACIFIC TRANSPORTATION CO., ET AL.

Respondent

On Petition For Writ of Certiorari

To the Supreme Court of Texas

BRIEF FOR RESPONDENT

To The Honorable Chief Justice and The

Associate Justices of The Supreme Court:

Respondent, Estate of H. H. Coffield, Deceased, and

Estate of Charles H. Coffield, Deceased, doing business as

Coffield Warehouse Company, hereinafter designated

“‘Coffield’’, respectfully submits this, its Btief in Opposition to

Petitioner’s Petition for Writ of Certiorari and respectfully

prays that the Court deny issuance of the writ.

JURISDICTION

Respondent acknowledges that the Court has discretionary

jurisdiction to grant the writ under 28 U.S.C. § 1257(3), but

Respondent submits that there are no ‘‘special and important

reasons,’’ as required by Rule 17.1 of the Rules of the Supreme

Court of the United States, for issuing a writ in this case.

STATUTE INVOLVED

45 U.S.C. § 5}

Every common carrier by railroad while engaging in

commerce between any of the several States or Territories, or

between any of the States and Territories, or between the

District of Columbia and any of the States or Territories, or

between the District of Columbia or any of the States or

Territories and any foreign nation or nations, shall be liable in

damages to any person suffering injury while he is employed by

such carrier in such commerce, or, in case of the death of such

employee, to his or her personal representative, for the benefit

of the surviving widow or husband and children of such

employee; and if none, then of such employee’s parents; and, if

none, then of the next of kin dependent upon such employee,

for such injury or death resulting in whole or in part from the

negligence cf any of the officers, agents, or employees of such

carrier, or by reason of any defect or insufficiency due to its

negligence, in its cars, engines, appliances, machinery, track,

roadbed, works, boats, wharves, or other equipment.

Any employee of a carrier, any part of whose duties as such

employee shall be the furtherance of interstate or foreign

commerce; or shall, in any way directly or closely and sub-

stantially, affect such commerce as above set forth shall, for the

purposes of this chapter, be considered as being employed by

such carrier in such commerce and shall be considered as

entitled to the benefits of this chapter.

STATEMENT OF THE CASE

This suit arises out of personal injuries that Javier Flores

sustained on February 17, 1981 while employed by Coffield.

Flores was hired as a welder and was injured when a Coffield

engine backed into two railcars while he was attempting to cross

between them. At the time of the accident, Flores was not

operating or working on railcars, engines or tracks.

Coffield was a subscriber under the Texas worker’s

compensation law and Flores, with the help of his attorneys,

Brown & Haden, made a claim for compensation under that

statute. He began receiving $266.00 in weekly compensation

benefits about two weeks after the accident. While receiving

these benefits, Flores brought this action against Coffield under

the Federal Employer’s Liability Act to receive a more

advantageous remedy.

Coffield is in the business of grain storage and general

merchandise warehousing. It operates grain storage facilities

and warehouses in two locations: one at 15 Japhet Street,

Houston where the accident occurred, and one at Orr, Texas.

The Houston warehousing facility is served by the Southern

Pacific Transportation Company since this is the only railroad

company with a spur track to the facility. The Orr grain facility

is only served by the Burlington Northern Railroad Company.

These are the only two railroads which deliver and remove

shipments from these facilities. Grain arrives at both facilities

by truck and rail and leaves the Houston facility by truck, rail

and barge. Grain leaves the Orr facility by truck and rail.

Coffield owns no trucks or barges for movement of grain or

goods for shippers. Most of the grain and goods leave by truck

or barge.

Rail shipments are brought to the Houston Coffield facility

by Southern Pacific. These cars are then moved short distances

by Coffield employees, using Coffield equipment, incident to

the unloading process at its facility. Coffield’s operations

include the unloading and storage of grain and other inanimate

cargo. Coffield owns track and engines and employs people to

operate this equipment. The maintenance of Coffield

equipment is either done by Coffield employees or a private

business, but not by Southern Pacific. All loading and

unloading is accomplished by Coffield employees with Coffield

equipment. Southern Pacific, as a common carrier, delivers and

picks up railcars from a siding track within the Coffield

premises.

The services performed by Coffield are not a part of the

total rail service contracted for by the public. The shipper does

not receive the services of Coffield by virtue of shipment with

Southern Pacific. The regular line-haul rate entitles the owner

only to transportation to the appropriate siding. Coffield hauls

z00ds to and from its siding in order to, and only to, benefit the

company’s warehousing service. Coffield does not move goods

for the public generally, it only transports goods which a person

has contracted to store with Coffield. Independent

arrangements must be made with Coffield and an additional

charge paid in order to have goods stored. Moving and

unloading shipments is incidental to Coffield’s storage

operations.

Coffield does not move the goods of any other company,

nor does any other company maintain rail facilities within

Coffield’s premises. Coffield does not charge a fee for the

movement of railcars incident to unloading. It charges a fixed

rate for the elevation of grain or storage of freight, regardless of

whether those goods arrive by rail or truck or leave by rail, truck

or water. For shipments leaving Coffield the procedure is

similar to arriving shipments. Coffield owns no stock or other

financial interest in Southern Pacific, and receives no

remuneration from that company.

The sole issue being presented by Petitioner to this Court

involves application of the Federal Employers Liability Act, 45

U.S.C. §§ 51-60 to a fact pattern never previously held to be

within the scope of that legislation.

SUMMARY OF ARGUMENT

This honorable Court has held that the right to define a

*‘common carrier by railroad”’ is a legislative right. This Court’s

interpretation of that definition has uniformly established that

those similarly situated as Coffield are not common carriers by

railroad.

Further, a state court must follow the precedent of this

Court and guide itself by Congressional intent when applying a

federal statute to a particular set of facts. The 157th Judicial

District Couri of Harris County, Texas, the Court of Appeals

for the Sixth Supreme Judicial District of Texas, and the Texas

Supreme Court have done exactly that as concerns 45 U.S.C.

§ 51, and therefore the Petition for Writ of Certiorari should be

denied.

ARGUMENT

Petitioner alleges that ihe Federal Employers Liability Act,

45 U.S.C. §§ 51-60 (1972), [hereinafter FELA], is applicable.

Section 51 provides in pertinent part:

“Every common carrier by railroad while

engaging in commerce between any of the several

states . . . shall be liable in damages to any person

suffering injury while he is employed by such carrier in

such commerce... .”’

This cause should not be reviewed by the Supreme Court of

the United States because the Texas court of last resort did not

decide an important question of federal law in a way that

conflicts with decisions of this Court, any federal court of

appeals or any other state’s court of last resort. In fact, the

decision reached by the Texas Supreme Court, by its refusal to

grant a writ of error, was the only decision that it could arrive at

in keeping with this Court’s holding in Wells Fargo & Co. v.

Taylor, 254 U.S. 175 (1920), as well as numerous federal court

decisions.

This Court has consistently construed the phrase ‘‘common

carrier by railroad’? narrowly to mean ‘‘one who operates a

railroad as a means for carrying for the public—that is to say, a

railroad company acting as a common carrier.’’ Wells Fargo &

Co. v. Taylor, 254 U.S. 175 (1920). This narrow interpretation

of the FELA was reaffirmed in Edwards v. Pacific Fruit Express

Co., 390 U.S. 538 (1968). In that case, a Pacific Fruit employee

was injured while transporting ice to refrigerator cars for

carriage by rail. He charged that Pacific Fruit was a common

carrier by rail because it owned railcars, switching tracks, and

the equipment to make repairs on these cars.

This Court and other federal courts have correctly declined

to judicially broaden FELA’s coverage to include employees of

“‘quasi-railroads’’ many times in the past. In Edwards, this

Court specifically noted that, subsequent to Wells Fargo,

Congress substantially amended the FELA, yet, in doing so,

expressly declined to adopi an amendment which would have

broadened the meaning of ‘‘common carrier by railroad’’ to

cover ‘‘activities and facilities intimateiy associated with the

business of common carrier by railroad.’’ Jd. at 541. In the

seventeen years since Edwards, Congress has continued to

decline to broaden the scope of the FELA.

The Edwards Court noted the plaintiff’s desire to bring his

action under the more advantageous FELA, as opposed to the

State worker’s compensation act; however, cautioned future

plaintiffs not to look to the courts to provide them a more

advantageous remedy. In doing so, this Court stated:

**. . . . The question of whether employees shall

rely on state compensation or on the Federal

Employers Liability Act is a pure question of

legislative policy . . . . Under these circumstances we

do not think this Court should depart from 60 years of

history to do what is a job for Congress.” Jd. at 543.

In Aho v. Erie Mining Co., 466 F.2d 539 (8th Cir. 1972),

the plaintiff attempted to bring an FELA lawsuit against a

mining company which operated 76 miles of raii line in

conjunction with its mining operations. The court of appeals

held that Erie was not a FELA common carrier by rail, and in

doing so discussed the distinction between providing a railroad

employee on a line, such as the Erie, with the same benefits as

one working for a common carrier.

** . . . This is, however, a legislative and not a

judicial distinction. Congress chose to limit coverage

(and hence jurisdiction) to employees of common

carriers, and we are not at liberty to expand such

coverage beyond the common law standards contem-

plated and made applicable by Congress.’’ /d. at 541.

For all of the foregoing reasons, this Court should decline

to expand the coverage of the FELA as is has several times in the

past.

Only a ‘‘common carrier by railroad’’ is liable under the

FELA for injuries sustained by its employees in the course of

their employment. The distinction which separates common

carriers from others who own and operate rail facilities is

whether the railroad operator holds itself out as willing to carry

for the public, generally, for a price. Mahfood v. Continental

Grain Co., 718 F.2d 779 (Sih Cir. 1983); Aho v. Erie Mining

Co., supra; Pickney v. Oro Dam Constructors, 441 F.2d 806

(9th Cir. 1971); Lone Star Steel Co. v. McGee, 380 F.2d 640 (Sth

Cir. 1967), cert. denied, 389 U.S. 977 (1968); Kelly v.

Pennsylvania Railroad, 110 F. Supp. 4 (E.D. Pa. 1953), aff'd

per curiam, 204 F.2d 692 (3d Cir. 1953), cert. denied, 346 U.S.

886 (1953); Duffy v. Armco Steel Corp., 225 F. Supp. 737

(W.D. Pa. 1964).

The mere existence of an intraplant rail facility will not

make a company a ‘‘common carrier by railroad’’ under the

FELA, unless the company operates its intraplant railroad

facility as a means for carrying goods for hire for the general

public. In Kelly v. Pennsylvania Railroad, supra, General

Electric operated an intraplant rail facility, which included over

two miles of track, switch engines and specially constructed cars

for the transportation of its products. General Electric’s

internal tracks were connected to a main line of the

Pennsylvania Railroad. The company’s products were delivered

by the Pennsylvania Railroad to a siding where the company’s

products were removed and the cars returned to the

Pennsylvania Railroad to complete further delivery to other

companies.

While General Electric operated an extensive railroad

facility, it was held not to be a common carrier under the Third

Circuit’s often quoted standard:

‘*A common carrier has been defined generally as

one who holds himself out to the public as engaged in

the business of transportation of persons or property

from place to place for compensation, offering his

services to the public generally. The distinctive charac-

teristic of a common carrier is that he undertakes to

carry for all people indifferently, and hence is

regarded in some respects as a public servant. The

dominant and controlling factor in determining the

status of one as a common carrier is his public profes-

sion as to the service offered or performed ....’’ Jd.

at 6. (Emphasis added).

General Electric’s rail facility was used solely to aid its plant

operations; it was not available for public transportation

purposes. Therefore, General Electric was not an FELA

common carrier by railroad.

The Fifth Circuit followed a similar analysis in determining

whether a steel company’s intraplant rail facility was operated

as a ‘‘common carrier by railroad.’’ Judge Gewin set out four

considerations for determining common carrier status in Lone

Star Steel Co. v. McGee, supra:

**. . . [VJarious considerations are of prime im-

portance in determining whether a particular entity is a

common carrier. First, actual performance of rail

service, second, the service being performed as part of

the total rail service contracted for by a member of the

public, third, the entity is performing as part of a

system of interstate rail transportation by virtue of

common ownership between itself and a railroad or by

a contractual relationship with a railroad, and hence

such entity is deemed to be holding itself out to the

public, and fourth, remuneration for the services

performed is received in some manner, such as a fixed

charge from a railroad or by a percent of the profits

from a railroad. .. .’’ Id. at 647.

Lone Star represents a rare exception in holding that this

steel company operated its intraplant rail facility so as to

become a FELA common carrier by railroad. In comparing the

railroad operations described in the other cases cited in this

brief, and the instant case, with those of Lone Star, important

differences can immediately be found which are unique to Lone

Star.

Besides Owning a huge intraplant rail facility, Lone Star

allowed various industries to maintain facilities within its plant

area. Lone Star engaged in the regular shuttling of the goods of

these other industries located within its plant. Thus, it

performed a part of the rail service which T&N Railway had

obligated itself to perform. Lone Star was, for all practical

purposes, the sole owner of T&N. Based on this common

ownership, the court found that Lone Star was receiving

remuneration in the form of dividends from T&N for the

intraplant movements being made for various other industries.

Under the following operative facts, the considerations set out

by the court were met.

1. Lone Star maintained a complex system of track

covering several miles.

2. The company owned eight diesel locomotives, 94

railcars, and six railroad cranes.

10.

11.

12.

It took 57 employees to operate these facilities.

Lone Star owned extensive property within which it

operated its main plant.

. Various industries maintained facilities within the

Lone Star plant area, and their operations were

integrated with the overall operation of Lone Star.

. Over a ten year period, some fourieen independent

entities maintained facilities within the plant and seven

of those shipped or received commodities by rail.

. Three subcontractors engaged in construction work for

Lone Star received some materials by rail.

Sixty-six prime contractors who furnished their own

labor, materials and equipment received their supplies,

in part, by rail.

The plant railroad was connected to the T&N.

Lone Star owned all but five shares of T&N’s common

stock and in ten years received over two million dollars

in dividends.

T&N is obligated to deliver railcars to each consignee’s

siding.

T&N charged for rail service involved in picking up

and delivering cars to a particular industry, whether

T&N handled the entire rail movements or Lone Star

provided a portion of such movement.

All of the above facts influenced the court in finding that

Lone Star was a common carrier by railroad; however, the case

actually turned on two crucial facts:

i.

2.

Lone Star regularly shuttled the goods of other

industries located within its plant facility.

Lone Star was virtually the sole owner of the T&N

Railway which serviced Lone Star’s plant and the other

industries located within that plant.

10

The court clearly distinguished between Lone Star common

carriers and private carriers such as Coffield in footnote 4 on

page 645:

*‘The following quote from Ward Transport,

Inc., et al. v. Public Utilities Comm., 151 Colo. 76,

376 P.2d 166, 169 (1962) aptly differentiates private

carriers from common carriers:

‘* * * 4 private carrier is one who, without making

it a vocation, or holding himself out to the public

as ready to act for all who desire his services,

undertakes, by special agreement in a particular

instance only, to transport property from one

place to another either gratuitously or for hire.

He carries only for persons with whom he has an

initial contract, and assumes no obligation to

carry for others; and in this lies the chief

distinction between a private carrier and a

common carrier * * *.’”

Subsequently, the Fifth Circuit found that the Harris

County Houston Ship Channel Navigation District, while it

owned railroad facilities, was not a common carrier by railroad.

McCrea v. Harris County Houston Ship Channel Navigation

District, 423 F.2d 605 (Sth Cir. 1970), cert. denied, 400 U.S. 927

(1970). Again, Judge Gewin wrote the opinion. McCrea, an

employee of the Navigation District, was killed when he fell into

a concrete pit housing a mechanism used by the Navigation

District to unload grain from railcars. The Navigation District

operated terminal facilities at the Port of Houston which were

linked with various rail carriers by a belt railroad operated by

the Port Terminal Railroad. The Port Terminal was an

unincorporated association consisting of various rail carriers

and the Navigation District. The Port Terminal leased property

from the Navigation District, including rights of way, trackage,

switches, yards, and office buildings.

11

The court dismissed the FELA action because the

Navigation District was not a common carrier by rail under the

Lone Star considerations and stated at pages 608-09:

‘‘In Lone Star, the steel company admitted that it

performed rail services and the case turned on the last

three considerations set out above. /n the instant case,

whether or not the Navigation District’s activities

constitute rail services is of central importance. In

answering this question in the negative, the district

court analogized the situation to three cases in which

the courts have held that the intraplant movement of

goods by rail did not make the industries involved rail

carriers under FELA. More importantly, the court

noted that the unloading of inanimate cargo is not

ordinarily a railroad function. Thus, the court

reasoned that the movement of rail cars over a few

hundred feet of track, incident to the unloading

process at the Navigation District’s facilities, is not a

rail service. While the Navigation District may be a

common carrier of a type, and engaged in interstate

commerce, its carriage services are performed by

conveyor and not by rail.

‘‘While this determination forecloses appellant’s

claim that the Navigation District is a rail carrier under

FELA, consideration of the remaining Lone Star

criteria reinforces the result reached by the district

court. The services performed by the Navigation

District are not a part of the total rail service

contracted for by the public. The Kansas grain

shipper, who appeared hypothetically throughout this

case, does not receive the services of the Navigation

District by virtue of his shipment contract with a

railroad. The regular line-haul rate entitles the shipper

only to transportation to the appropriate siding track.

Independent arrangements must be made with the

Navigation District and an additional charge paid in

order to have the cars moved to the dumping

mechanism and unloaded.

12

Tn tpt NNO a ee om

**The Navigation District makes no direct charge

for the movement of rail cars incident to unloading. It

charges one and one-half cents for the elevation of a

bushel of grain. Though its costs, including the cost of

moving rail cars, are included in this rate, the same

charge is applicable whether the grain arrives by rail or

motor carrier. . . .”’ (Emphasis added).

It is significant to note that Judge Gewin wrote approvingly

of the district court’s reliance on Kelly v. General Electric Co. in

finding that the intraplant movement of goods by rail does not

make a company a common carrier under the FELA.

Interestingly, McCrea was followed in Sivils v. Harris

County Houston Ship Channel Navigation District, 462 S.W.2d

352 (Tex. Civ. App.—Houston [14th Dist.] 1970, no writ) on

almost identical facts in which Brown & Haden again

unsuccessfully tried to make the company a common carrier by

railroad.

The Fifth Circuit in the recent case of Mahfood v.

Continental Grain Co., supra, on almost identical facts to the

instant case, made the same holding as the Texas state courts.

The plaintiff, a Continental mechanic, was required as one of

his duties to repair railroad locomotives owned by Continental.

He was injured while working on a dump truck. Continental

had several thousand feet of track within its grain export

facilities and used two locomotives and a four-man crew to

operate the railroad.

It had a lease agreement with the Missouri-Pacific Railroad

Company, whereby the latter delivered railcars to Continental’s

grain export facilities and removed the cars after they were

unloaded. Continental’s engines were prohibited from leaving

its premises except for a 1,500 foot segment of track owned by

the Missouri-Pacific which was only used by Continental for

storage. Pursuant to the lease, Continental constructed certain

safety equipment and facilities for the part of the Missouri-

Pacific line leased to Continental and, in turn, Continental was

13

to be reimbursed for such construction cost through revenue

received for carloads hauled over that section of track.

The plaintiff contended, as does Petitioner in the instant

case, that Continental’s railroad was an integral part of the

interstate rail operation whereby grain was carried by rail to

export facilities and then to Continental wharfs for shipping by

water to interstate destinations. Continental responded, just as

Coffield does, that it was not a common carrier by rail because

its railroad was used exclusively for its own purpose and no

charges were made by reason of rail transportation, and it did

not hold itself out for public hire or advertise its services. That

court held that Continental was not a common carrier by rail

and stated on page 782:

‘*In conducting its business of shipping grain by

sea from its grain facilities to other destinations,

Continental undoubtedly performs some railroad

functions. But this internal transportation of grain by

Continental from the unloading station is not being

performed as part of total rail services Missouri-

Pacific (or Continental) has contracted with the public

to perform. Nor is Continental’s railroad operation an

integral link of Missouri-Pacific’s total rail operation.

Finally, Continental does not receive either directly or

indirectly remuneration for its rail services through

fixed charges or through dividends from a subsidiary

for which it fulfills rail services.’’

In addition, the court’s response to the third consideration of

Lone Star clearly answers petitioner’s contention that Coffield

is subject to the FELA. The court stated at page 783:

‘*Finally, Mahfood urges us to hold that because

Continental and Missouri-Pacific have entered into

agreements with regard to the construction of safety

equipment and switching track, the third prong of the

McGee test is satisfied. We are not persuaded that a

mere agreement as to track upkeep demonstrates that

Continental is performing as a part of a ‘system of

14

Ser ANIA, ih i ARES PYRE Ses wins CBE nA foe Od ne em ae I Ls be re

interstate rail transportation’ as interpreted by McGee

and its progeny. Indeed, the record does not reflect

that ‘the operations of the two are highly integrated

and mutually dependent,’ as was found in McGee. See

McGee, supra, at 648.”’

In Ciaccio v. New Orleans Public Belt Railroad, 285

F. Supp. 373 (E.D. La. 1968), the question arose as to whether

Lykes Brothers Steamship Company was an FELA common

carrier by rail. Lykes, as a part of its steamship operations,

maintained a stevedoring department to conduct the loading

and unloading of vessels at the port of New Orleans. Some

cargo were carried to and from the wharf by railcar which, in

turn, were moved between the water ferry and staging points in

New Orleans by the Public Belt Railroad Commission.

Plaintiff, a Lykes employee, was injured while moving a railcar

on the wharf. The court set out the distinction that Lykes did

not hold itself out to the public as ready to transport goods for

hire by rail on page 375:

‘“‘The small rail system of Lykes Brothers

Steamship Company does not cause it to be a common

carrier by railroad. It is true that Lykes carries goods

belonging to others for their benefit and for hire. But

Lykes does not hold itself out to the public as ready to

transport goods for hire by rail. Lykes does advertise

that it is willing to transport goods by water for the

public indiscriminately, and therefore this company is

a common carrier by water. But there is absolutely no

advertising that Lykes carries freight by rail. Those

who do not hold themselves out as willing to serve the

public indiscriminately by railroad are not common

carriers by railroad, and Lykes has never heid itself out

to the public as willing to perform such rail services.

Rather, this rail system is merely the means by which

Lykes has elected to facilitate the loading and

unloading of its vessels and to move cargo on and off

the wharf. It would be a distortion of FELA and the

15

Safety Appliance Act to include Lykes Brothers

Steamship Company under their provisions as a

common carrier by railroad.’’ (Emphasis added).

The court discussed Lone Siar on page 376:

‘**But surely, the modest rail system used by Lykes

to load and unload its vessels cannot be compared to

the vast rail complex operated by Lone Star Steel

Company... .”’

The court further indicated that Lykes did not have a common

ownership or contractual relationship with any common carrier

by rail.

Thurman v. Armco Steel Corp., C.A. No. H-79-1840 (S.D.

Tex. Oct. 17, 1980) further illustrates that Coffield is not a

common carrier by rail. Armco used approximately 100

employees to move goods and materials on its 75 miles of track

with its locomotives and several railcars. In addition, it had

separate contracts with the Port Terminal Railroad and

Missouri Pacific for delivering and picking up railcars.

Moreover, Armco moved railcars for Houston Slag Company,

an independent company located within the Armco plant area,

and charged Houston Slag $5.00 per car.

The court, however, noted:

**. . . . The switching services performed by

Armco are not part of Houston Slag’s transportation

contract with the commercial railroads, and payment

is not made to the railroads for these services.

Conversely, the railroads do not pay Armco for

performing these services.’’ (Tr. 653-54).

The Court applied Lone Star and held that, though Armco was

a railroad and received remuneration, the rail service was not

being performed as a part of the total rail service contracted for

by a member of the public, and Armco was not performing as a

part of a system of interstate rail transportation by virtue of

common ownership between itself and the railroad or by

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contractual relationship. The same is true in the instant case

and, in addition, there is no remuneration to Coffield. If the

court did not hold that Armco was providing services for the

public in servicing Houston Slag, an independent company,

surely Coffield, who only performed services for warehouse

customers, is not performing for the public generally.

Substantial similarity exists between the facts of the instant

case and those of Mahfood, McCrea, Ciaccio, and Aho.

Coffield operates a warehousing business which is located near

a port. Shipments arrive by rail and truck and leave by rail,

truck and barge. Rail shipments are brought to Coffield by

Southern Pacific. These cars are then moved short distances by

Coffield employees, using Coffield equipment, incident to the

unloading process at its facility. Coffield’s operations include

the unloading and storage of grain and other inanimate cargo.

Coffield owns track and engines and employs people to operate

this equipment. The maintenance of Coffield equipment is

either done by Coffield employees or a private business, but not

by Southern Pacific. All loading and unloading is accomplished

by Coffield employees with Coffield equipment. Southern

Pacific, as a common carrier, delivers and picks up railcars

from a siding track within the Coffield premises.

Moreover, the services performed by Coffield are not a

part of the total rail service contracted for by the public. The

shipper does not receive the services of Coffield by virtue of

shipment with Southern Pacific. The regular line-haul rate

entitles the owner only to transportation to the appropriate

siding. Coffield hauls goods to and from its siding in order to,

and only to, benefit the company’s warehousing service.

Coffield does not move goods for the public generally, it only

transports goods which a person has contracted to store with

Coffield. Independent arrangements must be made with

Coffield and an additional charge paid in order to have goods

stored. Moving and unloading shipments is incidental to

Coffield’s storage operations.

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Coffield does not shuttle the goods of any other company,

nor does any other company maintain rail facilities within

Coffield’s premises. Coffield does not charge a fee for the

movement of railcars incident to unloading. It charges a fixed

rate for the elevation of grain or storage of freight, regardless of

whether those goods arrive by rail or truck or leave by rail, truck

or water. Coffield owns no stock or other financial interest in

Southern Pacific, and receives no remuneration from that

company. Under these facts, Coffield is clearly not a common

carrier under the Fifth Circuit’s test.

Petitioner attempts without success to conform these facts

with the facts and law in Lone Star. Petitioner has made

inaccurate conclusions from the evidence and alleges that the

service Coffield performs is part of the total rail service

contracted for by the public: Lone Star consideration two.

Petitioner infers that Coffield uses its intraplant rail facility not

as a means to facilitate its warehouse operations, but to carry

for the public generally. This is simply not the fact.

Petitioner completely ignores the facts and the manner in

which they interact with the well-established law. The contract

with Coffield does not entitle the shipper to have the grain or

goods moved by rail, truck or barge. The waybill will designate

the rail carriers to be involved and will provide for division of

revenue. Coffield will be shown as the consignee, not a rail

carrier, and will not receive a division of the revenue. Coffield

will store goods for the public generally but will not transport

goods for the public generally.

Lone Star was delivering goods to other industries

within its plant which T&N had contracted to do. Further, Lone

Star received compensation for taking goods to these other

industries through T&N’s stock dividends. Thus, Lone Star

performed part of the rail service which T&N had contracted

with the public to do and since it received compensation for

making those rail movements, it was held to be a common

carrier by railroad.

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Coffield does not perform any aspect of the services which

Southern Pacific has contracted to do. Furthermore,

independent arrangements musi be made with Coffield and an

additional charge paid in order to have the railcars, which

Southern Pacific brings to the Coffield siding, moved and

unloaded. Cf. McCrea, 423 F.2d at 609. Unlike Lone Star,

Coffield is not holding itself out to the public as willing to haul

the goods of other industries, companies, or individuals.

Coffield only moves and unloads goods to facilitate its

warehouse business and exclusively for its warehouse

customers. Therefore, considerations two and three of Lone

Star are not met under these facts.

CONCLUSION

The decisions of the trial court, the court of appeals, and

the Supreme Court of Texas correctly interpret and apply 45

U.S.C. § 51 under the precedent of this Court, and of the

United States Courts of Appeals, and of the district courts

which have considered this issue. Such an approach is consistent

with the judicial obligation to interpret and apply a federal

statute so as to effectuate its purpose. This is precisely what was

done in the instant case by the courts below. Further, as stated

in Wells Fargo v. Taylor and Edwards v. Pacific Fruit Express

Co., this Court is guided by Congress’ intent when construing

the scope of the FELA which intent has not changed in over

sixty years. The relief that Petitioner seeks falls outside of the

scope of the remedy granted by the United States Congress in

the FELA. The decisions of the 157th Judicial District Court of

Harris County, Texas, the Court of Appeals for the Sixth

Supreme Judicial District of Texas, and the Supreme Court of

the State of Texas are correct.

WHEREFORE, PREMISES CONSIDERED, respondent,

Estate of H. H. Coffield, Deceased, and Estate of Charles H.

. Coffield, Deceased, doing business as Coffield Warehouse

19

Company, respectfully requests that the Petition for Writ of

Certiorari should be denied. Respondent further requests all

other relief to which it may be entitled.

Lt arr submitted,

Arno Ww. ae f

MBan foe

910 Travis Street

Houston, Texas 77002

(713) 651-5151

Attorney for Respondent

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Brief for Respondent was served upon Mr. J. L.

Hinojosa, Two Houston Center, Suite 1450, 909 Fannin Street,

Houston, Texas 77010-1006, attorney for Petitioner, by mailing

three (3) copies of same to him via the United States mail, first

class, postage prepaid, on this the Ist day of July, 1985, and

that he is the attorney for the only other party to be served in

this matter. J

j

| Pd

Bde anf Go

i W. Krebs, Jr.

20