Petition for Writ of Certiorari — Lone Star Steel Co. v. McGee

OCTOBER TERM 1967 |

- —_— |

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

- \ Spencer C. Retyza, III,

1511 Fidelity Union Life Bldg.,

Dallas, Texas,

| _Counsel for Petitioner.

RoserT E. Burns, .

Burrorp, Rysurn & Foro, |

Of Counsel .

NN AI SE LOE STI LIE ITS

‘WARLICK PRESS, INC.-——P. O. BOX 10543—2263 VALDINA STREET—DALLAS—ME 1-3130

Supreme Court of the United | States 2

___Lonz Star — Company, — Moe dt

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FN, CIBRARY*.. s .

! ales EP 26 1967

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Argument a SOE DEAD MIVA oes NSPE Y Dele tN NM 6

Conclusion Peay er Oe paste DEFER SE SMA MERLE 14

| Appendix A—Opinion Below ...........c0lcucnpeeneeieneines Mel

Appendix B—Judgment’ Below .2...0.cc0ceeeeenpeee Bell

_ Appendix C—Order Denying Rehearing Paes C1 |

' Appendix D—Statute Involved 2.0.0.0... icpcsbela uae D-1

' List of Authorities mest ae

awkins Lumber -Co. v. L. ter & Co, :,’

213 Ky. 795, 281 S.W. 1013 (1926) ...3..o!joscweecneen i

v. Armco ‘Steel Corporation, 225 F.

Supp. 737 (W.D.Pa., 1964) oo. ccccccccccccscscccsseceoee TaN eae 11

' Kelly v. General Electric Co., 204 F. 2d 692

(CCA 3, 1953), cert. den. ee aL )

e 6 § SS cenit ean wee OW SURE Se

Kelly v. General Electric, 110 F. Supp. 4 Yes.’

(E.D.Pa., 1953) ........ RE RUPERT 4 disiioiaé 9,10 .

‘Malvern Gravel Company v. Mitchell, 238 Atk.

852, 385 S.W. 2d 144 (1965), cert. den.’382 =

US. 828, 15 L.,Ed. 2d 73 ei pasheakeane SIS, ELE De 11 .

_ Michigan Public Utilities Commission v. Coral ey

W. Duke, 266 U.S. 570, 45 S. Ch. 191s 69 L.

I a tae seat cesses occ gesncincerveseneee 7

~ Powell v. Pacific Naval Air Base Contractors,

et al., 21 Ca. R. 355, P. 2d 631 (Dist. a

Ct. of App., Cal, 1949) oo... cccccclesseessusseen Scan 11

- Shaw v. ‘Monessen, 200 F. 2d 841 (GCA 3, 1958) asad aias’ 14

State.ex rel, Silver Lake Ry. & Lumber Co. v.

Public Service Commission of Weshitigton, :

Wash. Sup., 201 P. 765 (1921) ooo ceccccesessssssesdeeenee seogecove LY

Tap Line Cases, 234 U.S. 1, 58 L.Ed. 1185, Pa:

34 S. Ct. 741 (1914) seseeeseelesnannsnnasasssasasionsscssesecenceeseseeseeet 9

* Tilson v. Ford Motor Company, 130 F. Supp. . i.

676 (B.D. Mich., 1955) o.......ecccccscssssssseneeeeee seerseaneeee ML

Wells Fargo & Company v. Taylor, 254 US. cs :

175, 65 L. Ed.°205, 41 S. Ct. 93 (1919)... GD

CoG, Statutes ate ,

28 US.C., § 1254(1) ...... pth einetiasipsiisieitatantiie sake Hi ae 2

45 US.C., § 51 edbnvoscaeunnded eecccove sitereeeeseeeees TTTITITITITITITTT TTT as coccee on 2

| fate

Supreme Court of the United States

, _. OCTOBER TERM 1967 ij

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m

Lone Star Sree. CoMPANY, | :

ss Petitioner,

6 ‘ v.

Lots MoGxe, ,

: Respondent. |

PETITION FOR WRIT OF . CERTIORARI TO THE

- UNITED’ STATES COURT OF APPEALS FOR

' THE FIFTH CIRCUIT

Lone Star Steel. Company prays that a writ of certiorari és

issue to review the judgment of the United States Court of

Appeals for the Fifth Circuit entéred in the above case on.’

_ June 23, 1967, which affirmed the judgment of the District —

Court for the Eastern District of Texas awarding a money

judgment in favor of Lois McGee, penned, and serra

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OPINION BELOW ge

The opinion of the Court of eased (Appendix A, infra,

P. ®) is not reported. "

JURISDICTION

The J udgment of the Court of Appeals was po on

the 23rd day of’ June, 1967 (Appendix B, infra. p. B-1)..

A Petition for Rehearing duly filed was denied on the 26th

day of July, 1967: (Appendix C, infra, p. C-13), ‘The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Is a private steel- making corporation which operates its :

‘ own in-plant rail facilities, ahd which on infrequent occa-

. sions and without charge moves rail cars from its classfica-

' tion yard to another’s industry location inside its plant, |

thereby a “commen carrier by railroad” subject to the Fed- |

eral we ‘Liability Act? . jae ts sk

STATUTE INVOEVED . 3 oa .

The statute involved i is the Federal Employers’ Liability |

Act, 45 U.S.C. § 51 (35 Stat. 65), ie eet set forth i

Appendix D, inf, p. Dt. anal AO % Moet

, STATEMENT 7

Lois McGee, Respondent, brought suit. against his em-

‘ployer, Lone Star Steel Company, Petitioner, seeking to re-

: cover damages for personal injuries under the FELA and

the Safety Appliance amt ‘Lone Star - defended on the

7

a")

ground that it was not a “common carrier by railroad” and

» that therefore. the above statutes were inapplicable and that

the District Court had no Jurisdiction of. the suit.

: Upon the pre-trial: of the case it was established that the

a only contested issues. of law were. whether or not: the above

- mentioned federal statutes were applicable, and whether or.

~ not Lone Star was ‘common carrier. (R. 128) At that time,

the District J udge ruled upon. these issues and held ‘as.a

matter of law that Lone Star was a common carrier by rail

and that the statutes did apply. (R. 126) Therefore, no.

evidence i in that regard was presented to the jury and..no —-

, issue was submitted: to it. Instead, the jury was. confined

to fact issues as to whether Lone Star was guilty of negli-

gence or had violated the Safety Appliance Act, arid. the .

nature and extent of McGee's injurigs The jury returned —

a verdict in favor of McGee for $56,000, and from the judg-

,

‘ment entered thereon Lone Star duly appealed to the .—

~ United States Court of Appeals for the Fifth ee Which

Court affirmed said caus bth ggy) te i

~The sole point in Pee is this: Is Lone Star com-

mon carrier by railroad? In this regard the evidence showed

that Lone’ Star operates a large steel mill, enclosed with

| fences and with entry controlled at gates where guards are

stationed. It owns * several miles of rail trackage, all of

which is. inside. the main’plant. (R. 96, 97, 111, 150) ‘It also,

owns its own rail equipment including engines P and cars.

a (R. 53-55) Such_ trackage and equipment are utilized to

perform the varied needs of. a X steel mill, such as moms

€ P

--

| materials about the plant, moving hot metal and ingots,

charging the furnaces and moving cars from the: classifica-

"tion yard to other parts of the plant. (R. 99, 218)

There i is only one rail connection out of the plant,. being

on a line owned by the Texas & Northern Railway Com-

pany (T&N), which is a common carrier by rail serving

Lone Star primarily but also serving other entities along

its route. (R. 142, 217) T&N is almost wholly owned by

Love Star, but each company has its own separate track-

age, ehgines, cars, shops, and ¢ employees.

Customarily incoming rail cars consigned w Lone Star

are delivered by T&N to Lone Star’s classification yard and -

‘left there, after which Lone Star’s. crews and equipment

distribute them throughout the plant. Similarly outgoing

cars, whether loaded or empty, are brought back to the

yard by Lone Star, where the T&N then picks them up for

transportation toward their destinations. (R. 152)

Most of the freight traffic consigned to Lone Star (main-

ly raw materials) or shipped by Lone Star (mainly steel

pipe), involves originating points or points of destination

beyond the boundaries of Texas. (R-96) | |

There are a few separate companies who occupy space

within the: plant and carry on activities related to Lone

Star’s steel- making activity. On infrequent occasions rail

cars come into the plant which are consigned to these com-

. panies. As to a part of such companies, the cars are deliv-

ered from Lone Star’s yard to the particular company loca-

5

tion by T&N, ae as to another ik the cars are delivered

'. by Lone Star. (R. 97-102, 187-192)

: Illustrating the relative volume of. movements of “foreign”

cars’ made by Lone Star are these facts. Total rail, car move-

ments (including i incoming cars, hot metal, etc.) made by .

Lone Star inside the plant. exceed 200, 000 per year, (R. 109)

In the six-month period from 6/1/63 to 11/30/63 Lone Star

Pe moved 4,648 outbound cars for itself and 14,336 inbound

-cars for itself. During the same period it moved: no out-

' . bound cars for any of the other companies located within

the confines of the plant, and moved only 34 inbound cars

from the classification yard to the particular company loca-

tions. (R. 100-102)

The obvious reason why Lone Star moved any cars to

company locations within the plant was for Lone Star’s own ©

convenience. In those few instances where such movements

were made, the companies involved were located consider-

able distances into the plant property from the classification

‘ yard and the operation of T&N trains into those areas of:

the plant would necessarily interfere with. the aaiany of

Lone Star’s operations. (R. 150)

Except for the rare switching movements made by Lone

Star for a few companies within the plant, and occasionally

the movement of an empty gondola car for one other entity

-and occasionally a movement involving a contractor doing

work for Lone Star in its plant, Lone Star has not moved

rail cars for any other entity. (R. 109)

6 oe

Lone Star has never made any charge for any. rail move-

ment on behalf of any person or company, nor has it re-

ceived any payment therefor. Lone Star does not publish

any tariffs regarding rail movements. (R. 106,\216) It has ©

not handled any less-than-carload (LCL) movements for

any other. person; and it does not have any switching rates

or line haul rates and. receives no revenue, directly or indi-

rectly, from anyone for rail shipments or movements. (R.

17, 18, 7 .

, ARGUMENT

The only question in this case is: Has Lone Star, by .

moving rail cars, on infrequent occasions and without:

charge, from its classification yard to an industry location

inside its plant, thereby involuntarily brought itself within

the concept of “common carrier by railroad”? Or stated dif- -

ferently, has Lone Star by such conduct placed itself in

such position that it must, upon demand from any person, —

transport rail cars over its ais trackage without discrimi-

nation?

The Court of Appeals answered these questions in the

affirmative, -apparently upon the following reasoning. That

since the T&N had an obligation under ‘its line haul rate

-. charges to deliver each car to each consignee’s rail siding,

and since Lone Star was in some few instances hauling —

such cars the last few hundred feet, Lone Star was in effect

‘performing a part of the T&N’s duties and Lone Star is

‘therefore automatically a* common carrier by rail, even

though it makes no charges whatsoever for its services. It

.

7

_is with this “ipso facto” conclusion that the Petitioner dis-

agrees, and lies we believe to be in conflict with the deci-

sions of this Court and of other Courts of Appeals. |

.This Court held ling ago that the term “comrnon carrier

by railroad,” as used in the FELA, was used in its tradi-

; \tional or commonly understood sense, “that is to say, a |

railroad company acting as a common carrier.” Wells Fargo

| & Company v v. Taylor, 254 U.S. 175, 65 L. Ed. 205 41. S. Ct.

| 93 (1919). . : :

‘The traditional or ordinary’ tests to be applied to’ deter-

mine whether a part is a common carrier of goods are these:

1. He must be engaged in the ‘business of carrying goods

for others as a public employment. | |

2. He must hold himself out as reddy to engage in the

_ transportation of goods for all persons indifferently and as

a business, and not as a casual occupation.

3. The transportation must be for hire.

As distinguished from common. carriers, a private carrier

is one who does not hold himself out to the public as ready

to act for all who desire his services, but instead undertakes

; pllaujqed avegantmcs dete, esto. magne oma

from one place to another either gratuitously or for hire.

Illustrating this distinction is Michigan Public. U tilities

Commission. v. Coral W. Duke, 266 U.S. 570, 45 S. Ct. 191,

69 L, Ed. 445 (1925). The plaintiff Duke sought to enjoin.

the enforcement of a Michigan statute regulating the business

of carrying freight for hire by motor vehicle over public

8

highways. The statute applied to “common carriers”, but

_ defined this term in sufficiently broad language to include

all carriers for hire. The facts indicated that the plaintiff

had three contracts to haul automobile bodies from Michi- —

gan to Ohio, and did not haul for the public generally. He

contended that he was a’ private carrier, not a common

carrier, and that the statute violated various constitutional

rights. |

* The Supreme Court ‘agreed that the plaintiff wan a pri-

vate carrier and in so doing commented upon a number of os

factors which would distinguish his situation from that of a

common carriér, p. 575:

“He hes no power of eminent domain. or franchise

under the State, and no ter right to use the high-

ways than any other ber of the body public. He

mus Set ecdia to cee bt as a, Ok Se

not devote his property to any public use. He has

done nothing to give rise to a duty to carry for others.

The public .is not dependent on him or the use of his

SS eee

for “transportation.” .

The court. went on to hold that if the contested statute

were upheld the effect would be that Duke would then be

a common carrier, burdened with all of the duties and obli-

gations of other common carriers, and his equipment would

necessarily be diverted from his activities as a private car-

rier into common carriage channels, thereby preventing him

from performing his existing private contracts in interstate

commerce, and thereby wrongfully interfering with such com-

a merce. Finally the court held that to convert the property

9

of a private carrier into a public carrier would be taking

_ private property without just compensation and would vio-

late the due process’ clause of the constitution.

Finally, one who operates'rail facilities for his own use is

not a common carrier by rail nor a private carrier. This dis-

tinction, between’ plant facilities and “true agencies of trans-

portation,” has heretofore been recognized by this Court,

- including the frequently cited Tap Line Cases, 234 US. 1, 58.

L. Ed. 1185, 34 1185, 34 S, Ct.741-(1914). In its opinion covering

"these ‘cases, this Court held that various short line railroad

companies operating between timber lands and trunk: lines

~ tracks were in fact common carriers. But the facts indicated

_. that the companies were “ engaged in carrying for hire the

goods of those who saw fit to employ them”; that they -were

classed as common carriers by the state government; and

_ that they had the power of. eminent domain. The opinion

clearly illustrated that. intra-plant rail operations would not

_ constitute common carrier operations, and reiterated the prin- |

- ciple that “the real criterion” in determining what is common

carriage and what is intraplant carriage i is “the right of the

public to use the road’s facilities and to demand service of

“*

The opinion of the Court of Appeals in the present case is

| contrary to this Court’s holdings in Wells Fargo. and Tap

Line cases, supra, and is contrary to the decision of the Court '

of Appeals for the Third Circuit in Kelly v. General Electric

Co., 204 F. 2d 692 (CCA 3, 1953), cert: den., 346 U.S. 868,

98 L: Ed. 390, 74 S. Ct. 137, which latter case is factually

“similar to our case. Sadie cal

eB.

10

The Court in the Kelly case wtote oly a beiel per curiam

‘opinion in which it in. effect ado the trial court’

2 SS

ion, as follows: ae . ee oat

“We find ourselves in alae intends with the :

Ee , Views expressed in the able and comprehensive opinion

* filed by Judge Clary in the district court, om 7

4, to which we need add. nothing.”

Therefore, to understand the Court’s opinion in the Kelly ,

case, it is necessary. to examine the trial court’s opinion,

- found at 110 F. Supp. 4. Briefly, the case concerned a simi-.

- Jar situation wherein. General Electric operated its own in-

plant rail trackage and equipment, there was one rail con-

nection with the Pennsylvania Railroad inside the plarit,

and the interchange.and movement of rail cars was accom-

plished in much the same manner as it was doge in our own

case. In addition, at times, incoming cars containing less

than carload shipments. were delivered to the siding, which

cars would be removed by General Electric to its buildings,

its. portion of the freight removed, and the cars returned. to

the siding for delivery by the Railroad to other consignees.

It also concerned an injury suffere’ by a General Electric

Employee who made claim under the FELA.

In holding that the General Electric Company wes not

a common carrier, the court stated, 110 F. Supp. 6: -

“A common tarrier 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 characteristic

iy tiene cee & eat & cede @ ana fee

all people indifferently, and hence is regarded in some

4

S %

— respects as a public’ servant. The dominant and con-

. trolling factor in determining the status of one as a

common carrier in' his public profession as to the serv-

eS ice offered or permitted. 9 Am. Jur., 430, 431 and case

there cited. * *

“There has been no showing by the pleiifil thet

the defendant General Electric Company comes within

- the terms of the general definitions of a common car-

rier above set forth. There is no showing that General .

Electric Company holds itself out generally to the

_ public. as offering services of. transportation for hire,

-nor is there a showing that defendant engages in ‘car- «

rying for hire the goods of those who see fit to employ

them,’ U. S. v. Louisiana & P. R. Co., 234 US. 1,

34 S. Ct. 741, 742, 58 L. Bd. 1165.”

The Kelly decision is in accord with the numerous

- opinions of the district courts of the United States, particu-

larly Duffy v. Armco Steel Corporation, 225 F. Supp. "137

(W. D. Pa., 1964) and Tilson v. Ford Motor Company, 130

F. Supp. 676 (E. D. Mich. 1955), and of the courts of the

various states, for example, Malvern Gravel Company v.

Mitchell, 238 Ark. 852, 385 S.W. 2d 144 (1965), cert. den.

382 U.S. 828, 15°L. Ed. 2d 73; Dawkins Lumber Co.. v. L.

Carpenter & Co., 213 Ky. 795, 281.8. W. 1013 (1926) ; Powell ©

v. Pacific Naval Air Base Contractors, et. al., 21 Ca.R. 355, -

— 209 P. 2d 631 (Dist. Ct. of App., Cal. 1949); State ex rel.

_ Silver Lake Ry. & Lumber Co. y. Public Service Commission ~

of Washington, Wash.’Sup., 201 P. 765 (1921), whereas the .

decision of the Court of Appeals in the present case is not.

- Many of these cases present fact situations almost identical

with the facts in this ease, and in some of them there was

far more movement of “foreign” traffic.than occurred here

fa

x

12

The dominant theme running through these cases is that

there must be (a) a holding out to the public to carry goods

- indiscriminately for all persons, and (b) for hire. .

‘The Court of Appeals in this case also placed reliance

upon certain cases involving terminal companies, switching

- companies and stockyard companies. Yet in every one of

the cases cited the various entities, contrary to Lone Star's

situation, were openly and obviously performing a “common _

or public calling” in the transportation of property by rail-

road, they were sq: holding themselves out to the public, they

performed. such services indiscriminately for anyone who

requested them, and. they were being paid for their services.

When ‘viewed in a broad perspective, the decision of the

Court of Appeals is not only contrary to the decisions of this

~ Court and other Courts; it is also contrary to the overwhelm-

‘ing and undisputed evidence in the case. Certainly Lone Star _

lacks the usual trappings of a common carrier. Its trackage"

- . and rail activities are confined to its enclosed, guarded steel

~ plant, “do not extend across the country nor from one

rail connection to another. It publishes no tariffs and has

“no rate schedule. It makes no charge and receives no revenue

for any rail activity. The ICC ‘exercises no jurisdiction over

its rail, operations except to inspect the two engines which

- necessarily go upon the T&N Line at intervals. Lone Star

does not handle any less-than-carload shipments contain-

ing anyone else’s freight, does not trans-ship for anyone

else and does not warehouse freight for anyone else.

As to its rail employees, they are members of the Steel-

workers Union, not the Railroad Brotherhood Unions, and

\

- Me ' ww . °

r | ee ‘ )

they are ‘subject to’ the Texgs Workmen’ 8 Compensation

Act. Thus McGee, as to the same injury involved in. this

case, filed a claim for workmen’s compensation and was paid

benefits Cane, which cain is still yong. (R. 109,

110) :

. As to the car movements which Lone Star has =n to -

‘outside companies located in the plant, such movements’ —

have been few in number and almost’ miniscule in number

when compared with Lone Star’s over-all’ car movements. :

Lone Star’s movement of cars for others was at best casual |

anid sdlective, and for Hi own convenience and efit op-

erations. ’

To summarize, the undisputed facts show that Lone Star

has not ‘engaged in the business of carrying for others as a

public employment; has not held itself out as ready to engage

in the transportation of goods for persons generally as a busi-

ness; has not offered to serve the public indiscriminately; has

; not made any charge for any car moyement; has no power.

of eminent domain; and has never intended to be a common |

carrier. If held to be such, its property which is intended —

for its own use in making steel products will necessarily be

. impressed with a public wamnaees subject w diversion for

~. public uses. . )

as ae The Court of Appeals based its decision in part upon the.

~ fact that Lone Star almost wholly owned the T&N, ad-

- mittedly. a common carrier, and that the operations of the

two are highly integrated and mutually dependent. By doing —

80, it reached a decision contrary to the decision of the Third

Circuit in Shaw v. Monessen, 200 F. 2d 841, (CCA 3, 1953)

>

_ which involved the’ activities of the Pittsburgh Steel Com-

pany and its wholly owned subsidiary, Monessen South-

western Ry. Co., which two conipanies had operations al-

most identical with those of Lone Star and the T&N: In

refusing to apply the FELA to the over-all rail qperations,

. the’ Court stated, P. 844:

lg nd AE ae eer |

be alert to: avoid inter-company arrangements . drawn

_ to avoid federal jurisdiction..We accept that but see

no evidence of such an arrangement here. We, on the

shee. ak should be alert to avoid the extension of .

an act applicable. to employees in interstate transpor- —

tation to cover those who are engaged in other occupa-

tions in industrial plants. Such an extension might well,

in many instances, deprive an injured workman of his: —

rights under a state compensation act where his right

ee een ee

CONCLU SION :

Lone Star is a steel-making company, not a common cai

tier. A writ of certiorari should’ be granted.

Respectfully submitted,

Spencer C. Rena, III,

1511 Fidelity Union Life Bidg.,

Dallas, Texas,

. : Counsel for Petitioner.

-Rozert E. Burns, 3

BurrorpD, RYBURN & Forp, |

Of Counsel |

oh nt il tan pitch nl oN. aii nas dha! eo Jia

Al

sein

UNITED STATES: COURT OF APPEALS

For The Fifth Circuit

/

/

Sn ato | _ No. 23671

Lone Star Stee, Company, :

e Appellant,

versus ;

Lois MoGr, 2 aia

Appellee.

— from the United States District Court for the

Benen District of Texas. |

| ~ 23, —

ee, Before GEWIN, COLEMAN and GOLDBERG, Circuit

| J udges.

GEWIN, Circuit Judge: This appeal is from a bias

rendered in an action brought in the United States District. .

Court for the Eastern District of Texas against Lone Star

"Steel Company (Lone Star) and Texas & Northern Rail-

way Company (T & N) by Lois McGee to recover damages

for personal injuries under the Federal Employers’ Liability

Act, 45 U.S.C. §§ 51-60, and the Safety Appliance Act, 45

U.S.C. §§ 1-16. Before trial McGee’s motion to dismiss

— A-2

T & N as a party defendant was granted. The district court

held as a matter of.law that the above federal statutes were

- applicable and that Lone Star was a common carrier by rail.

The jury returned a verdict in favor of McGee for $56, 000,

and judgment was entered thereon. ~~ 7,

McGee alleged i in his complaint’ that he ¥ was employed by

Lone Star as a railroad switchman. While acting within the

. course and scope of his employment, McGee alleged that on

August 6, 1963, he received injuries to his body which re-

sulted from the negligence of Lone Star. He claimed that

. Lone Star was negligent in permitting a rail car to be used

on its tracks,with a defective coupler which could not be

uncoupled without the necessity of going between the cars

in violation of the Safety Appliance Act and that Lone Star

_was negligent in failing to furnish him a safe place to work

and a safe means and method of work. He alleged that as a

result of Lone Star’s negligence he received severe, crippling

gp i and permanent injuries to his back and other. portions of

his body and that such injuries had totally destroyed or

greatly diminished his earning capacity. He further con-.

tended that Lone Star is a common carrier by rail and there-

fore is subject to the provisions of the Safety Appliance Act

and the Federal Employers’ Liability Act and is liable to

‘him for his injuries. sustained through its re .

-

ee

Lone Star admits that it is engaged in interstate com-

merce and that it is a carrier by rail, It strenuously denies

that it is a common carrier by railroad, and therefore claims

~ *We have omitted from our discussion the allegations in the

— against T & N in view of the fact that the suit was

_ later dismissed as to it. .

—_ .

LD MAR DEIR os a le Saba PANE te ae a Pa

] . on

as ee . SS Sg eh Het aa et A i AC EB ACI

aii ii ni sn 9 a hae 7 .

. . e

A-3 ~ 4

that the provisions of the Safety Appliance Act and the 4

Federal Employers’ Liability Act do not apply to it:

aaa Lone Star’s activities were the subject of a pretrial stipu-

| lation which will be discussed later. From the facts detailed .

in the stipulation and from a consideration of the law ap-_

_ «plicable to such facts, the district court in a pre-trial order -

held Lone Star to be a common carrier by rail. The i issues .

of whether Lone Star: was guilty of negligence or had vio-

lated the Safety Appliance Act and the nature and extent

of McGee’s injuries were submitted to the Jury which re-

turned the verdict mentioned earlier.

The sole i issue on this appeal is whether the,court erred

in holding asa matter of law that Lone Star was a common

carrier by rail and thus subject to the Federal Employers’

Liability Act and the Safety |Appliance Act. After a care-

ful study of the record and a consideration of the argu-

ments of both parties, we ne the judgment of the district

court,

The stipulation of the parties as to the activities of Lone

Star and T & N in connection with their rail operations

contains the following pertinent data: The T & N is a com-

mon carrier by rail in interstate commerce. The T & N -

main line extends from a point inside the Lone Star plant

complex to an interchange yard near the junction of its rail .

facilities with those of the Louisiana and Arkansas Railway -

Company. T & N performs rail service for Lone Star, for

companies located within the Lone Star Plant area, and for

companies outside the Lone Star Plant at various locations

along its line. .

— . ee ee |

semhiae, Sears

A4

Lone Star owns extensive properties near Lone Star,

Texas, within which it operates its main plant for the pro-

cessing and production of steel and steel products from raw

materials. Lone Star produces plate steel with a rolling mill

to roll it into pipe. In addition, it produces and ships semi-

finished products including coils, slabs, ingots pig iron and

other products such as ammonium sulphate and benzol.

Within its plant proper _— Star has a complex system

of rail trackage covering several miles. As of August 6, 1963,

it owned 8 diesel electric locomotives, 94 cars of railroad

| rolling stock and 6 railroad cranes. On the same date it.had

57 employees: performing duties in connection with its rail

/ facilities such as switchmen, brakemen, engineers, firemen

and maintenance personnel. In 1963 Lone Star’s railroad

equipment and crews made 205,248 rail car movements in-

sidé the plant. The Interstate Commerce Commission does

not check any railroad equipment belonging to Lone Star

with the exception of Lone Star’s locomotives No. 3 and

No. 4. None of the Lone Star equipment operates on

TE&N’s track except these two locomotives. |

Lone Star owns 3,308 shares of the 3,313 ‘iainie of com-

mon capital stock issued by T & N and from October 1,

1955, to September 30, 1965, T & N. paid to Lone Star

$2,000,000 in dividends. From 1950 to the present the par-

ties have entered into numerous agreements concerning

land, cars, rails, locomotives, rail equipment, safety equip-

_ ment, and the interchange between the parties as to out-

- bound and inbound cars.

I as a eB,

A-5

Various initustries maintain facilities within the Lone |

_ Star plant area, and their operations are integrated with the .

‘overall operation of Lone Star such as coating and wrap-

ping Lone Star Steel pipe, using Lone Star slag to produce

gravel or separating metals from ore thereby reclaiming

what would otherwise be a waste product of the Lone Star

- Steel mill operation. During the past ten years some four-

teen entities, independent of ownership or control .by Lone

Star have maintained facilities within the plant. At. least

seven of these have shipped and/or ‘received commodities ° .

_. by rail during this period. Three subcontractors engaged in

- construction work for Lone Star in its plant received ma-

terial furnished by Lone Star in part by rail. Other entities

supplied material and equipment to Lone Star which were

received in part by rail and furnished service representa-

tives for installation. Additionally, 66 prime contractors who

furnished their own labor, wn equipment, etc., re-

‘ ceived their supplies i in part by rail. |

The primary point of interchange between the Lone Star >

and T & N rail systems is. the classification yard located .

. just inside Lone Star’s boundary line. The only traek in .

' the classification yard not owned by Lone Star is the T & N

main line which runs the length of the yard. T & N oper-

ates with respect to shipments for Lone Star and the com-

panies located within its plant area’in what is known as a

“line haul freight movement by rail.” In such an operation

. T &N is obligated to deliver rail cars to the consignee’s sid-

ee

A

ing or industry track and to pick up outbound shipments at

the consignor’s siding. Therefore rail service between the

T & N track in the classification yard and the siding of in-

dustries involved is provided and this service is included i in.

the line haul freight rate charged by T&N.

This rail service between the classification yard and the

shipper industry is performed by both T & N and Lone Star.

Lone Star has handled inbound shipments for one industry,

C. A. Hackett, Inc., operating within its plant area and has

handled all its own inbound and outbound shipments -as

well as handled. all inbound and outbound shipments for

Linde Gas Co., Texstar, Inc., and Southwestern Electric

Power Co. Also Lone Star has handled the switching move-

ments involving equipment or material of -a construction

contractor on the plant premises,

Lone Star makes no direct charge by way of tariffs and

receives no direct freight revenues for any rail services per-

_ formed by it, and publishes no tariffs regarding mail move-

ments. However, T & N’s freight charge includes a charge

for the rail services involved in picking up and delivering ;

cars to a particular industry, as mentioned above, and this

charge is made regardless of whether T & N handles the en-.

- tire rail movement or Lone Star handles a —* of such

movement.

°

It is contended by McGee that under the various agree- _

ments between Lone Star and T & N, esis the opera-

e

AT ne

_ tion of their respective rail systems, the parties are engaged

in a joint undertaking, that of providing public rail trans-

_ portation. Additionally, Lone Star actively participates in

_ the operation by actually performing rail services paid for

_ by the industries involved, albeit to T & N, and from which

Lone Star. receives the payment as dividends ‘from T & N.

_ Therefore, according to McGee, Lone Star is a common car-

rier under the Federal Employers’ Liability Act. Lone Star |

‘contends that its intraplant rail operations are plant facili-

ties and do not constitute common Carrier operations. Also,

Lone Star argues that since it makes no direct charge for

"its services and does not hold itself out to the general pub-

lic as one engaged i in the business of transportation for hire,

but moves rail cars solely as an accommodation to T & N .

and the various industries located within its plant and for

its own convenience, it is not a common carrier.

The Federal ‘Employers’ Liability Act by its terms ‘ap-

plies to “every common carrier. by railroad while engaging

in commerce between any of the several States,” 45 U.S.C.

§ 51, and the safety Appliance Act by its terms is applicable

to “any common carrier engaged in interstate commerce by

railroad,” 45 U.S.C. § 1. 3

. The common carrier concept has long been in usage. At

an early date the term as used in the FELA was held in

Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187, 65 L. Ed.

205, 213 (1920) to mean, “one who operates a railroad as a

. As

means of carrying for the:public.[and] ... this ew... is -

in accord with the ordinary acceptation of the words ee

A more recent discussion of the term is found in Kelly v. i

General Elec. Co., 110 F. Supp. .4, 6(E.D. Pa.), aff'd. 204

F, 2d 692 (3 Cir.) cert deng346 U.S. 868, 74 S. Ct. 137, 98

L, Ed. 390 (1953) where the district court stated:

“A common carrier-has been defined generally as one

who holds himself out to the public as engaged in the

business of transportation of person or property from -

place to plage for compensation, offering his services

to the public generally. The distinctive characteristic

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.” — |

Neither of the parties questions the fact that T & N isa |

_, common carrier and it has been so stipulated: Lone Star

_ admits that it is virtually the sole stockholder of T & N, and.

that their rail systems are the subject of numerous agree-

ments such as (1) T & N would maintain safety signal —

equipment on Lene Star rails and maintain various turn-

outs in the Lone Star plant, (2) the rental of locomotive

equipment, (3) certain tracks would be used for the inter-

_ Change between the parties of outbound and inbound: cars,

_and (4) T & N could use Lone Star’s classification yard for

switching purposes in order to serve customers other than

- Lone Star. Lone Star also admits that it performs rail ser- _

vice between its classification. yard and. various: locations _

‘within its plant which T & N is obligated to perform and

i)

ak.

A-9

for which charges are included in the T & N freight tariff.”

However, Lone Star points out that these rait movements

constitute only a small part of the overall in-plant rail

movements made by Lone Star which according to the stip-

ulation totaled more than 200,000 per year. In addition,

Lone Star submits that it performed this rail service pri-

‘marily for. its own benefit.in that Lone Star was actually

a-customer of these industries for which it rendered rail

service and that it, would seriously hinder the effective and

efficient operation of its steel mill to‘allow T & N to use

Lone Star’s complex intra-plant rail facilities. Therefore Lone

Star contends that despite its ownership of and contractual

relationship with T & N and ‘despite the fact that it has

occasionally rformed rail service for other parties, it is

merely maintaining a railroad system for its own use and —

therefore its rail operations are plant. facilities and not

those of a common carrier. — iy

.** The following is from the brief of Lone Star:

“Most of 'T&N’s freight movements involve line haul move-

ments, which means that the delivering carrier’s duty includes

‘the delivery of the rail car in question to the consignee’s

siding or industry track, and this service is included in’ the

line haul rate charged by the connecting carriers. ’Conversely,

the initiating. common carrier ordinarily picks up the car at

the consignor’s siding, and his‘service is incl in the rate

charged.” - sf - eae ‘

- “From time. to time ‘the above entities ‘shipped or received

materials by rail. Movements.of such rail cars to and from -

Appellant’s classification yard were made by T&N for Gen-

eral Dynamics, Gifford-Hill, Inc.; Gulf Coast and Reilly Tar,

utilizing T&N crews and equipment ‘but operating over Ap-

pellant’s tracks from the classification yard to the particular

industry location. es rit

“On the other hand, Appellant’s crews and equipment made

such movements to and: from its classification yard within

the plant for C. A. Hackett, Inc., Linde, Gas, Texstar, Inc.

(all located in the south part of the plant), and Southwestern

- Power Co. (located on the wést-side of the plant).”

/ \

%

i

Ado

Courts have ii recognized the distinction sities plant

facilities and “true agencies of transportation.” In New York |

Cent. & H.R.R. Co. v. General Elec. Co., 219 N.Y. 227,

114 N.E. 115 (1916) cert.-den. 343 U.S. 636, 37 S. Ct. 400,

61 L. Ed. 941, the court held that where an. industry main-

tains a complicated intra-plant railroad system, ‘such rail

operations will be regarded as plant facilities rather than

those of a common carrier. The movement of freight. within

the Plant ie not common carriage but rather industrial plant |

usage.’ .” |

The rail operations of the defendant in Duffy v. Armco

Steel Corp., 225 F. Supp. 737. (W. D. Pa. 1964) were also }

held to be plant facilities. Armco was engaged in the manu- ."

facture of steel products and owned and operated railroad —

equipment within its manufacturing plant. This equipment

was used to transport material and equipment from place to

. Place in the plant and to Armeco’s other nearby plant. In- 3

bound railroad cars were delivered by the Bessemer & Lake

Erie Railroad to a track within the plant, and the cars-were

then distributed to various parts of the plant by Armco.

This. procedure was reversed on outbound shipments. The

| court held that Armco was not a common carrier under the

FELA because its railroad equipment had not been used to

". transport goods of others, nor had Armco offered their use to

the public. ;

* See also ‘Malvern Gravel Co: ‘v. Mitchell, et al., 238 Ark. .

* 852, 385 S.W. 2d 144, cert. den. 382 U.S. 828, 15 L.’Ed. 2d 73

(1965); Powell v. Pacific Naval Air Base Contractors, et al.>

21 Ca.R. 355, 209 P..2d 631 (1949); Legislative Comm. of

848). Bhds, v. P.U.C.,.149 Ohio St. 511, 80 N.E. 2d 159

( . ;

A-11

The court in Kelly v. General Elec. Co., 110 F. Supp. 4 ©

(E.D. Pa. 1953) aff'd. 204 F. 2d 692 (3 Cir.) cert. den. 346

U.S. 868, 74 S. Ct. 137, 98 -L. Ed.'390 also dealt with the .

question of whether an industry’s. operation. of its internal —

rail system constituted such industry a common carrier under .

the FELA. General Electric was engaged in the business

of manufacturing, rebuilding and repairing electrical equip-

ment and other products. As part of its plant equipment it :

had a system of internal trackage some 2.17 miles in length, .

2 switching engines, 9 cars which it rented to rail carriers,

and 10 cars which it used for its own purposes. Its tracks

were connectéd to a siding of the Pennsylvania Railroad lo-

cated within its plant. The railroad delivered cars to the

siding and thereafter the cars were removed and distributed

| throughout the plant by General Electric's switching engines.

Occasionally cars containing G. E.’s goods as well as goods

of others were removed by General Electric to its buildings

where ‘it unloaded its goods and then returned the cars to

_ the siding for delivery by the railroad to the other consignees.

It was contended that General Electric was.a common car-

rier because, inter alia, it moved, property of others when it -

movéd less-than-carload shipments and when it moved its ©

_ outbound ‘shipments to the siding, since goods were shipped

| FOB plant and title to the goods passed as soon as they

were placed in the cars. General Electric contended that it

‘maintained its railroad system for its own convenience and

necessity in the conduct of its business, The court held that

| General Electric was not a common cairier under the FELA

-

- ee eee eee SiR IE Re RSA hate AS a as sn Ba Ae EDTA

os A-12

in that it did not hold itself out generally to the public as

offering services of transportation for hire, nor was it em-

ployed to carry goods of others for hire. The court found

that there was nothing to indicate that the public could de-

mand service of General Electric with respect to its rail

facilities. The court concluded that moving less-than-carload

shipments was for General Electric’s own ‘convenience and

for the service. In addition, the court stated that carrying

goods inbound and outbound to and from the siding was a

~.. common feature ‘in every plant facility, and whether the ship-

mént. was inbound or outbound, it still comprised General

Electric’s products that it had sold or bought, and therefore _

General Electric was engaged solely ‘in rail service for itself.

‘In other instances lumber companies which operated rail-

roads primarily for their own use were found by the court

_ to be private carriers, as opposed to common carriers, where

the lumber companies engaged in some transportation of

‘persons or property for hire. Dawkins Lumber Co. v. L.

Carpenter & Co., 213 Ky. 795, 281 S.W. 1013 (1926); State

ex rel Silver Lake Ry. & Lumber Co. v. Public Service

Comm., 201 P. 765 (1921). The Court found them to be

_ private carriers in that they did not hold themselves out

_ to the pyblic as being engaged in the business of transporta-

tion for any who wished to avail themselves of their serv-

ADDN hag eGo Wig SF me A

- added nothing to the service contracted by Pennsylvania — |

Railroad and the other conSignees and no charge was miade

A-13

e ;

ice but’ merely rendered rail service for certain people or

. certain businesses usually pursuant to contract.‘

In comparing the railroad operations described in Armco —

‘and Kelly with those of Lone Star, we immediately find im-

portant differences. Although the principle use of Lone

‘Star’s intra-plant railroad, to move its own goods, equip-

ment, etc., is identical to the rail operations in the above

cases, Lone Star is, engaged in a method of operation not

-found. in those cases. It is regularly shuttling the goods of

other business concerns located within its plant and there-

by is performing a part of the total rail services which an-

_ other railroad, T & N ‘has obligated itself to perform. We

find that these services which Lone Star has undertaken ~

to perform clearly distinguish Lone Star’s intra-plant rail-

road from those in Armco and Kelly. Additionally, Lone

Star’s operations are markedly different from those in

Dawkins and Silver Lake, supra. In neither of‘ those cases

did the entity involved perform its rail services in conneg-

tion with an interstate common carrier, whereas Lone Star’s

services are a necessary part of T & N’s total rai) opera-

tion. As a consequence, Lone Star cannot claim to be a

private carrier because by undertaking the obligations of

* The following 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.

“... a 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 a ent ina.

particular: instance only,.to transport property n 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 distinc-

tion between a private carrier and a common carrier : . .

~ S ‘ a

ete A AER oR ik aC AS a ti EN

eer PEAR Dh Bisbee as Svs siktens

i Sait

A-14 |

a common carrier, T & N, it holds itself out to the public as_

being engaged in the business of public transportation.

- Moreover, since T & N holds itself out to the public as

performing all the duties of a common carrier, Lone ‘Star -

cannot claim that the duties it performs for T & N are not

offered indiscriminately to the public.

In deciding whether Lone Star is a common carrier, its

: railroad, operations can be compared to the-operation of

terminal facilities, Southern Pacific Terminal Co., et al. v.

ICC, et al., 219 U.S. 498, 55 L. Ed. 310 (1911) ; United States

v. Brooklyn Eastern Dist. Terminal, 249 USS. 296, 63 L. Ed.

613 (1919), stockyards, United States v. Union Stock Yard ©

& Transit Co., et al., 226 U.S. 286, 57 L, Ed. 226 (1912);

Union Stockyards ‘Co. v. United States, 169 Fed. 404 (8

‘Cir. 1909), and short line railroads, United States v. Cali-

fornia, 297 U.S. 175, 80 L. Ed. 567 (1936). Although the

business entities in these cases are in a general sense pri-

marily engagéd in aspects of rail transportation, while Lone

Star is mainly a steel industry and engaged in railroading -

only as an incident to its business, the criteria used by the

courts to determine whether these entities were common

carriers are just as applicable in our determination of wheth-

_er Lone Star is a common carrier.

‘In Southern Pacific Terminal Co. and Brooklyn Eastern

‘Dist. Terminal, supra, the terminal companies were found

' to be common carriers. The Southern Pacific Terminal main-

tained wharves and docks for the accommodation of im- .

port and export traffic and it charged a fixed ‘wharfage for

all freight passing over its track facilities which were con-

A-15

nected ‘to tracks of the Southern Pacific system. The court

found that the Terminal and the railroads comprising the.

Southern Pacific System which were commonly owned by

the Southern Pacific Co., a holding company, had been united

into a system of which all were necessary parts; and since

the Terminal formed a vital link in the chain of transpor-

. tation, it was a common carrier and subject to regulation

by the ICC. The operation of the Brooklyn Terminal in-

cluded the transportation of freight from the Terminal to

its docks and for these services it was paid by the railroad

or steamship company. The Terminal, in contending that

_ it was not a common carrier, argued primarily that it per-

formed solely under contract with the railroads and there-.

fore did not perform services rendered. by the Terminal

were public in their nature and of a kind ordinarly performed

by a common carrier. The court stated that one-is not pre-

cluded from being a common carrier merely because the

rail transportation services which it renders to the public

. are performed as agent for another.

The stockyards in Union Stockyards Co., supra, presented

essentially the same argument. While admittedly the stock- ms

yards were rendering a service which the railroads were

bound to perform, they insisted that they were not a com-

mon carrier because the rail transportation services were

performed for the railroad pursuant to contract’ under which

the stockyards received a fixed charge per car and there-

fore the services were not performed for the public. The

court found that the stockyard operation included the car-

Souci PAE

oe eS to eter MTD oes ee

A-16

riage of livestock. for hire destined to or from its sheds or pens

which in effect were the ‘depot of the railroad’ companies,

It was of little significance to the court that the stockyards

did not hold themselves out to the public to carry livestock.

It was sufficient that the railroad did so hold. itself out to

the public and the’ stockyards were willing to perform and _

actually did so perform a part of the service which the rail-

road companies had agreed to perform when the livestock .

were accepted for carriage. Therefore the stockyards were

. held to be a common carrier engaged in interstate commerce

under the Safety Appliance Law.”

Similarly, the stockyard in Stock Yard and Transit Co.,

supra, was fourid to be a common carrier. Although it had

divested itself of its rail facilities by leasing them to the

Junction Railroad, it loaded, fed, watered and cared for

livestock in transit and received two-thirds of the profit of ©

_the Junction Railroad. The Investment Co., a holding Com-

pany, owned both the stockyard and the railroad. The court

held that these companies, the stockyard and the Junction

Railroad, engaged in carrier rail services when they loaded

freight at the stockyard on cars, transported it for a dis-

tance under a through rate and bill-furnished by the trunk |

line carrier, or received freight while in commerce upon a

through ‘rate which included terminal service rendered by

the two, and ‘completed its delivery to the consignee.

Likewise, the California owned State Belt Railroad was

held in’ United States v. California, supra, to be a common

carrier engaged in transportation by rail under the Safety.

Appliance Act because it transported freight back and forth

A-17 |

from industeien to the railvoads from which it received a

flat charge. per car. The court found: that the services per-

formed by the Railroad were of a public character for hire

and held that all the essential elements of a common car-

rier were present, that i is, the receipt and transportation for

the public for’ hire of cars moving in interstate commerce,

According to these cases various considerations are of

prime importance i in determining whether a particular en-

tity. is a common carrier. First—actual performance of ‘rail

. Service, second—the service being performed is 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 inter-

state rail transportation by virtue of common ownership be-

tween itself and a railroad or by a contractual relationship

with a railroad, and hence such entity is deemed to be hold-

' ing itself out to the public, and fourth—remuneration for

the services performed is received in some manner, such a8

a fixed charge from a railroad or by a percent of the profits

from a railroad. The stockyards, the terminals and the Cali-

. fornia short line met these conditions and so also does Lone

Star. . st

Unquestionably, Lone Star performs rail services and -

such services are a part of the total rail transportation con-

_ tracted for and required by the industries located on its

plant site. While it does: not perform these services under

contract with T & N, it certainly is an integral part of the

T & N system of interstate rail transportation. And finally, ,

even though it does not receive money in the form of direct

_transportation charges from T & N or from the industries

“A-18

serviced, it is for all. practical purposes the sil owner of

TEN. It is closely allied with T & N, their operations are

interwoven, and therefore it receives in the form of divi-

dends a part of the rate charged the industries by T & N.

It has been suggested that we cannot ignore the legal’ in-

dividuality of Lone Star and T & N and therefore, we are

precluded from attaching any significance to the fact that

- Lone Star is essentially the sole stockholder of T & N and

consequently receives dividends therefrom. It is contended

that stock ownership does not make the two companies one.

While we agree with this proposition, we do not think it is —

controlling because the record does not present a case of

mere stock ownership. Instead the record reflects that the

- operations of the two are highly integrated and mutually

dependent. In a similar fashion the court in Southern Pa-

cific Terminal ‘Co., supra, was faced with substantially the

same problem and it found the Terminal Co., although a

legally separate business entity, to be part of a railroad sys-

tem. In Southern Pacific Terminal the court stated at page

—. |

“The record does not present a case of stock owner-

ship merely, or of a holding company which was con-

tent to hold. It presents a case, as we have already

_ said, of one actively managing and uniting the railroads

and the terminal company into an organized system.

And it is with the system that the law must deal, not.

.~ with its elements’. Such elements may, indeed, be re-

_ garded from some standpoints as legal entities; may

have, in a sense, separate corporate operation; but they

are directed by the same. paramount and combining .

power and made single by it.” 219 US. 498, 523 (1911) .

/

/

/

/

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eee I Las ae

Se eee

A-19

Stock ownership also played a part in the court’s decision

in the Union Stock Yard case, supra, where it stated at

page 306:

“We think that thedd companies, nee dévdein.

ter of the Service rendered by them, their joint opera-

See oe aiding company, are to be ‘deemed a rail

road * * *” 296°U.S. 286, 306 (1922) |

Also courts have specifically rejected" as. a controlling cri-

terion the status which the entity declares itself to be in

' determining whether the entity %s a common carrier.

“Whether a transportation. agency is a common carrier de-

pends not upon its corporate character or declared purposes,

' but upon what it does.” United States v. California, supra,

297 U.S. at 181, The answer to-the question of whether an

entity is a common carrier “does not depend upon whether

its charter declares it to be a common carrier, nor upon

‘whether the state-of incorporation considers it such; but

upon what it does.” Brooklyn Eastern Dist. Terminal, supra,

249 US. at 304.

The fact that Lone Star’s carriage for other industries

comprises only a minor portion of its rail movements also -

does not prevent it from being a common carrier. The court ;

stated in the Tap Line cases:*

“But this conclusion [that one is not a common car-

rier if only a small part of the ‘traffic cartied is the

property of others] loses sight of the principle that the

extent to which a railroad is in fact used does not

determine the fact whether it is or is not a common

* United States v. Louisiana & P.R. Co., 234 U.S. 1, 58 L. Ed.

1185, 1194 (1913). See also Washington Univ. v. United States,

157 F.2d 112 (8 Cir. 1946). «

A-20

carrier. It is the right of the public to:wse the tendo

facilities and to demand service of it, rather than the

extent of its business, which is the real criterion: de-

terminative of its character.” _. em

Accordingly we conclude that Lone Star has gone beyond

the permissible bounds of what is allowed in operating an.

intra-plant rail system as a plant facility. It has not re-

. stricted its use to the operation of its steel mill but has

_ adopted the regular practice of transporting for others. In

light of the rail services Lone Star has performed, the-fact

that such services are actually rendered in fulfillment of

T &-N’s obligations as a ‘carrier, and giving consideration

to the facts disclosed in the record revealing the close con-

nection between the two companies and their mutual de-

pendence on each other, we conclude that both Lone Star .

and T & N are operating, jointly, a railroad system which

constitutes each of them a common carrier.

>

- | JUDGMENT AFFIRMED.

APPENDIX B

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UNITED STATES COURT OF APPEALS -

_. For the Fifth Cireuit

October Term, 1966 ;

No. 23671

. D. C. Docket No. CA 1057-65

Lone STAR STEEL ‘Company, 5

Appellant,

versus ,

Lor MoGur, |

. Appellee.

Appeal from the United States District Court for the |

Eastern District of Texas *

Before. GEWIN, COLEMAN and GOLDBERG, Circuit

JUDGMENT’

‘TNA sini ies the ni Ue Geet is Mab es Ge

record from the United States District Court for the East-

ern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOPF, It is now here or-

dered and adjudged by this Court that the judgment of the

faid District Court in this cause be, and the same is hereby,

~=Be

It is further ordered and adjudged that the appellant,’

Lone Star Steel Company, be condemned to pay the costs

of this cause in this Court for which execution may be is- _

bea oe : oi June 23, 1967

. Issued as Mandate: —

Sa

“a

— C1

U. S. Court of Appeals _

Filed Pe

July 25, 1967

Edward Wadsworth,

Clerk |

In the ©

UNITED STATES COURT OF APPEALS

F or The Fifth Circuit

No. 23,671

LONE Star STEEL Company, =e

Appellant,

a

Lois McGee,

ot | Appellee.

aeael from the United States District Court for the

Eastern District of Texas —

(July 26, 1967)

“ON PETITION FOR REHEARING

Before GEWIN, COLEMAN and GOLDBERG, Circuit

Judges

PER CURIAM: 7

_ IT IS ORDERED that the petition for rehearing in the

a entitled and numbered cause be and the same is

hereby DENIED.

D-1

§ 51. Liability of common carriers by railroad, in inter-

Ae EN state or foreign commerce, for. injuries to em-

_ ployees from negligence; definition of employees |

Every common carrier by railroad while engaging in com-

merce 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 em-

-Ployed by such carrier in such commerce, or, in case of the

| death of such employee, to his or her personal representa-

tive, for the benefit of the surviving widow or husband and

children of such employee; and, if none, then of such ‘em-

ployee’s parents; and, if none, then of the next of kin de-

pendent upon such employee, for such injury or death re-

sulting in whole or in part from the negligence of 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 substantially, affect such commerce as above set forth

shall, for the purposes of this chapter, be considered as be-

ing employed by such carrier in such commerce and shall

be considered as entitled to the benefits of this chapter, Apre-

22, 1908, c. 149, § 1, 35 Stat. 65; Aug. 11, 1989, c: 685, § 1,

53 Stat. 1404, , : |

chahicmss anid,

nae

vudetes .

1967.

D-2-

CERTIFICATE _

The undersigned hereby certifies that copies of. the above.

and foregoing Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit have this

date been served upon counsel for Respondent by deposit-

ing same in the United States mail, with sufficient postage

affixed, properly’ addressed, as follows:

Mr. Franklin Jones, Jr.

-Jones, Jones & Baldwin

Post Office Box 1249,

Marshall, Texas —

DATED at Dallas, Texas, this ...... day of .............. "esa

a eel

‘ja C. Relyea III