Petition for Writ of Certiorari — Edwards v. Pacific Fruit Express Co.

- |

QMURARY PTE

— COURT. U, Si oo.

1907

.

hn the Supreme Daath es.

OF THE

‘Auited States

OcroBeR TERM, 1967

465

E.isHa Epwarps; a

| | Petitioner,

Vs. | a:

Paciric Frvir Express Company,

Respondent. |

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Davin S. LEVINSON,

139 Turquoise Way,

San Francisco, California 94131,

Attorney for Petitioner.

ARNE WERCHICK,

240 Second Street, -

San Francisco, Califor nia 94105 .

Of Counsel.

ee

«

"| Select ladle

Citations to opinions below ............. Ncebeccctesteuese

a a TEE LTTE EET paseenncinine cae

Question presented ........:.... en eie as Sarre Been 2

URROAD TAVUEUOE 6. tee cn cdnenees sce sces cosgine sieweeesien 3

Statement of the case .........:..:...% ad vuxiuanks cchewtnas 4

Reasons for granting the writ .............. eee Pe ae 13

A. The decision of the Court of Appeals conflicts with

decisions “ this court a of other federal and state.

CIEE kawékvcun daadditinccnrsehetes OP RO AG ROR 14

| B. . The decision of the court below prevents uniform ‘ap- -

plication of a comprehensive congressional program,

- leaving unanswered several questions of far reaching :

'* significance ..... see cecenesaeeees nese ee seees eens 22

| Conclusion _ eS op FOE Oe: ees thaess: ae.

- Table of Authorities Cited

pou v. Southern Pacific Co., 939 Cal. App. 2d 636, 43 sage

a Rptr. 73 (1964)... 2... cee cecgee cece cece esesencecdos . 15

American Trucking Ass’ns, Ine. v. . Atehioon, T.&S. F. Ry.

Ss ce oe , 18 L.Hd.2d 847 (1967)............... 14

Arrow Aviation v. "Moore, 266 F.2d 488 (8th Cir. 1959).. 23

_ Bush v. Brooklyn Eastern: Dist: Term. Co., 218 N.Y.S. 516,

218 App. Div. 182 (1926) PREETI Er ee Sr Em Me cae

Dairymen’s Co-op Sales ha. v. Public Service Commission

of Penn., Penna., 177 A. 770, 98°A.L.R. 218 (1935)..... 23

atti ‘Eddings v. Collins: Pine Company, 140 F.Supp. 622 (N. D.

: Calif. eae REPT ee eee back sie wivackess seeees 20

ee ee i i aed

ee Taste or Avrnorrris Crrep-

. 3 Pages

Fleming v. ies Express Agency, 161 F.2d 659 vil Cir.

SE Nuits ce eed dee kk ek ASU ed Ree aed wicks owe ade ens a

Fort Street Union Depot Co. v. Hillen, 119 F.2d 307 (6th

a a, adieu eatecs as 19

Gaulden v. Southern Pacific Co., 78 F. F.Supp. 651 (N. D.

Calif. 1948); aff'd 174 F.2d 1022 (9th Cir. 1949), ete 25

AP OPE ee PEO POP A tT TE | MRP 6, 12, 13, 14, 15, 23

-Guiterrez v. Waterman ‘Steamship Corp., 373 U. S. 206

Sproat. CE Re Rie ..

Hamarstrom v. a R. Co., 233 Mo. App.

1108, 116 S,W.2d 280 (1938) ...° ::.......0cecceec lees 24

me seman v. Fruit Growers Express Co., 346 sae 947 . (3d

(1941) - 0... ccc eee r ewe weew eee ecceceecenceecsenecses 19

McCabe v. Boston Terminal Co., 303 Mass. 450, 22 N.E.2d

Se ESF eee Ca deNG aC uae seek She ee crt sewaa cease 19

McCullough '‘v. Jacksonville Terminal Co, Fla.App., 176 So.

bh Sa i Eg Dal clonic Sirk wou nw wks Noe Co's 19

Moleton v. Union Pacific Railroad, 118 Ut. 107, 219 P.2d

1080 (1950), cer. den. 340 U.S. 932 Re oie a 15, 16

Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1 (1912)

ts Ee Pivetinian sea ves sna svnews vers (soit, a

‘Pacific Fruit ilies v. -MeColgan, 67 Cal. App. 2d 93," 153

PE ES oa tac sida ch MEKEK Gb a vi waxes SEK cs 11

'. Parden v. Terminal R. of Alabama Docks Dept., 377 US.

Be SUE SG ok hae 5 cesar eke cbe GON ness geri ins sweet es 16, 18

Railway Express Agency v. Esformes, 174 N.Y.S.2d 878, 12

Mise.2d 1038 (1958) AR ae Be RL a A a . 21

Southern Pacific Co. v. Gileo, 351 U. S. 493 (1955)........ 11, 22

Cir. 1965) eae et Gee ies aa a ds kek eaka tat haces 8, 21

Jones v. New York Central, 182 F. 24 326 (6th Cir. 1950) v4 21

Maurice v.. California, 43 Cal. App.2d 270, 110 P.2d 796

Union Stockyards v. United States, 308 U.S. 213 ( 1939) .. .12, 19

United States v. Brooklyn Rastern Dist. Term. Co., 249 U.S.

MIND shaky v's svc dina oaiehn CUbbis os 39 6 aeee nae s etecbées 19

United States: v. — 297 U.S. 175 (1986) ere Ty 17, 18, 19. |

RIAL EDN FFF "9

<*

—

2

" ‘Tape or AurHorrries Crrep iii

¢

: td a * : 7. | Pages

Wells Fargo v. Taylor, 254 U.S. 175 (1920)......... Le 20; 21

Wilkerson v. McCarthy, 336 U.S. 53 (1948)............. oe

Code of Civil Procedure, Section 1870(2).......... nesivins 3

Bvidenss Code, Sections 1220-1222 ....... Perce rn os - 6

Labor Code, Section 3201 ON vcs hanes MRAM aha bee bent

. Rules ;

Federal Rules of Civil Procedure, Rule 43(a)............ "6

Me UBG, Betiek TNA) reise sk iivsnciheoes ies Keo ee

45 U.S.C., 27 Stat, 531, Section 1 et seq. .........000.0..°

45 U.S.C., 53 Stat. 1404, Section 51 ( Federal Sashigete =

Liability Act) errerre bed Po enteavas ce padespeavacununs 3

Tee Texts desea.

Griffith, The Vindication of-a National Public Policy Under

‘the Federal Employers’ Liability Act, 1953,-18 Law and ~

Contemporary Problems 160, 187 ..................... 22

I. C. C. Annual Reports, Transport Statisties in the United

States, Part 9, p. 7: (1965)............0c5008 sereeeeT 9,14

‘U.S. Dept. of Com., Statistical Abstract of the United States

oe Pear pease 9

Pointy eae f

Dt the mupeeme Court

oy sie oited States

Ooveden Ten, 1967

mS

Si ©

.

No.

ELIsHA EDWARDS,

| Petitioner,

vs.

Paciric Frurt Express Company,

Respondent. J:

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals _

for the Ninth Circuit

.

Petitioner, Elisha Edwards, respectfully prays that .

a writ of certiorari issue to review the decision and

judgment of the United States Court of Appeals for

the Ninth Cireuit entered in théeabove entitled case on

May 10, 1967.

‘CITATIONS TO OPINIONS BELOW

The memorandum decision of the United States

_—— Court for the Northern District of California

°

2 a

(R. 85-86), dated March 18, 1966, is ‘siiibiteiel and —

is printed: in Appendix A hereto, infra. The opinion

of the Court of Appeals for the, Ninth Circuit (R.

90-91) is not yet. reported at the time of this writing

and is meptintes i in Appendix B hereto, —

_ JURISDICTION

The decision and judgment of the Const of Appeals.

"was entéred on. May 10, 1967. (R. 89, 92.) Petitiorier

herein did not seek a rehearing before the Court of:

Appeals. The jurisdiction of this Court is mvoked

-under 28 U.S.C. §1254 (1).

2 .

—

QUESTION PRESENTED

‘Ts Pacific Fruit Express Company a “common cary

rier by railroad” and therefore subject to liability

under the Federal Employers’ Liability Act where:

(a) it owns, controls, operates and services the

largest fidet of refrigerated railroad cars. and.

trailers in the United States;

(b) it controls the movement of its cars in

transit; : : "i

(ec). it holds itself out to the bublie ¢ as providing |

common carriage of ae commodities tot

rail;

(d) it owns sitouaiis railroad terminal, service

and repair geen, and facilities ; |

. 3 ii

(e) it owns railroad -tracks and ‘locomotives

which it uses in its operations ;

(f) it is required to report its finpiseiid data to

the Interstate Commerce Commission, using i

form of accounts prescribed by the I.C.C., and to.

maintain its railroad equipment: in compliance

with the Federal Safety Appliance Act;

(g). it charges for the use of its railroads cars:

on the basis of the distance goods are carried in

its cars; :

(h) its seplipeis are -eontinnousty exposed to *

the identical hazards faced by employees of oper-

ating rajlroads: generally ; em.

(i) it’ engages solely i in operations. —— to do.

only with the railroad industry ?

STATUTE INVOLVED

The statute central to this petition is. Section 1 of

the Federal Employers’ Liability Act, 53 Stat. 1404,

Rad U.S.C. §51: :

Every common carrier by railroad while en-

_. gaging 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 me death -

5.

‘of such employee, to his or her personal represent-

_ ative, for the benefit of the surviving widow or.

husband and children of such employee; and, if

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

none, then of the next of kin dependent upon

' such employee, fer such injury or death resulting

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 €ars, 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 arty

\ way directly or closely and substazitially, 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

aang oneee,

_* STATEMENT OF THE CASE

This action. arises under the Federal Employers’

- Liability Act and seeks damages for injuries caused

petitioner, Elisha Edwards, while acting in the course

‘of his employment by respondent, Pacific Fruit Ex-

* press Company (P.F.E.), at, Roseville, California.

The complaint (R. 1-3) reflects that on November 9, °

1963, petitioner ‘was employed by respondent:in fur-

‘therance. of respondent’s interstate commerce opera-

_ tions; ;. because of the careless and negligent main-

_ tenance of appliances and premises. by “respondent,

| : ee

petitioner was seriously and permanently injured

when he was completely enveloped in burning gaso-

line; as a result, petitioner is disabled and disfigured

and has prayed: for general damages in the sum of

One Million Dollars in addition to his special damages. _

-Respondent’s answer (R. 4-6) admits that it is a Utah

‘corporation acting in interstate commerce; that peti-

tioner was éfnployed ‘by respondent at the time of the

accident; that petitioner was injured in the course’ of .

his employment;? and.that it has in fact. been neces-

sary for petitioner to receive an as yet undetermined |

amount of medical care for his injuries. The employ-

ment in which ‘petitioner was engaged when he sus-

tained these injuries involved making respondent’s

railroad freight cars ready for the transportation of

perishalle commodities 1 in interstate commerce by rail-

road. ‘t 37.) ° “

The gellieal facts. and circumstances eivconsiiing

the events and injuries are not, at least for present

_ purposes, at issue, Shortly after interposing its an- _

Swer, respondent moved for summary judgment (R.

10), alleging immunity from liability under the Fed-

eral Employers’ Liability Act as a matter of law, and |

the district court granted the motion. after concluding

that Pacific Fruit Express Company is not a “‘com-

mon carrier by railroad.” Because judgment, occurred

in the ey of this litigation, the ssiaiaits is of ne-

1This follows from ‘respondent’ s Sixth. Affirmative Defense (R.

6) alleging payment of temporary workmen’s compensation béne-

fits for which the employment relationship to the injury would be

“ a@ prerequisite to the application of California Labor Code § 3201

. et seq. ~— accident compensation). ;

SOR Rey tro atten saree :

6

_ cessity fragmentary and is primarily concerned with

facts showing the actual nature of respondent’s oper-

ations. Se i ee |

Pacific Fruit Express is “one of the oldest refrig-

erator car. companies” in the United States.? It en-

gages some four thousand employees (R. 71), most—

if not all—of whom have joined railroad labor unions

formed as “brotherhoods” with which P.F.E. has:

entered into collective bargaining agreements.‘ Re-

spondent owns, controls, operates and Services the .

largest fleet of refrigerated railroad cars and trailers.

in the United States, consisting of twenty-five thou-

“Verbatim extracts from the record used in this petition to

describe respondent’s business activities come solely. from docu-

ments authored by respondent unless specifically indicated to the -

contrary. In fact, all data in the roca illustrating respondent’s

activities was obtained from the hand’ of respondent,. i.e., its affi-

‘‘davit supporting the motion for summary judgment (R. 34-39)

_ and the publications ‘introduced below by petitioner (R.°70-76),

the origin and authenticity of which are not disputed by re-

spondent. The publications are informally obtained advertising

literature but are nevertheless admissible in evidence against re-

spondent [Rule 43 (a), Federal Rules of Civil Procedure; Cali-

fornia Evidence Code §§ 1220-1222, incorporating the provisions

of former California Code of Civil Procedure $1870 (2)] and,

having been introduced in the district court without objection, they

‘constitute “material which may properly be used against

respondent. - ‘a . 7 eae,

__ 8Since its organization in 1907, P.F.E.’s sole shareholders have

been Union Pacific Railroad Company -and Southern Pacific

Company. (R. 34.) Respondent maintains that there are no joint

managerial or labor employees. an . 2

*Respondent so advised the district court in ‘an affidavit filed on

its behalf in Gaulden_v. Southern Pacific Co., 78 F.Supp. 651.

(N.D.:Calif. 1948), aff’d 174 F.2d 1022 (9th Cir. 1949). See 2555

Records of the U.S. Court of Appeals, Number 12062, TR 34.

Respondent still maintains the same labor arrangements and deals

with a-railroad clerical brotherhood of which petitioner was a .

member at the time of the accident. Complete information: is’ not

presently available as to the number or identity of the railroad

brotherhoods with which respondent now negotiates. . ona

7°

. | ‘ . ‘

Sand, three hundred refrigerator boxcars, 2730 me-.

_ chanical ‘cars, and 1000 “‘Iee-Tempco” cars® (R. 70)

and constituting essentially thirty per cent of the re-—

frigerated railroad rofling stock in the nation.* “Re-

spondent aptly describes itself as the ‘nation’s largest

operator of refrigerated rail cars.” (R. 71.)

.» Rail deliveries of perishable commodities which

require protection against heat’ and cold “were

handled by railroads even as far back as 100 years -

ago” (R. 71) and do not represent’ a modern innova-

tion in the railway industry. An estimated one million

railroad carloads of perishable commodities now move

in the United States every year, and: P.F.E. ‘orig-

inates and otherwise handles about 280,000 carloads or

approximately 28% of the. nation’s total.’ (R. 71.)

5“Tee-Tempco” refers to the presence in the freight cars of

“units for constant operation of air-circulating fans while under

load to produce controlled temperatures.” (R. 73.) The continuous

‘involvement of P.F.E. with the commodities : while being| trans-

‘ported is further illustrated by the fact that P.F.E. also |

tises “TEMPCO-VAN SERVICE” involving ownership

of 400 refrigerated highway trailer-containers for receipt and

delivery of goods and 200 “piggyback” rail flat cars to carty the

containers. (R. 70.) . en ee a

*Respondent during the year 1965 also operated 1946 refrigera-

tor cars and 474 flat cars leased from the Southern Pacifie Com-

pany and 1742 refrigerator cars and 474 flat cars leased from the

Union Pacific Railroad Company. Interstate Commerce Commis-

sion, Annual Reports, Transport Statistics in the United States,

Part 9, p.°7 (1965). It is unknown whether these leased cars are

reflected in the figures cited above as published by respondent or

whether they represent an additional aspect of respondent’s rail-

_ Way car operations. In any event, respondent operates rolling .

stock owned by operating rail carriers as well as its own cars.

"The record reflects the existence of several other private

refrigerator car companies (R. 71) but ‘is silent regarding the

organizational stricture or actual operations of any but respond-

ent. It is known, however, that respondent’s transportation activi-

ties are considerably more extensive than those of at least one

8

Respondent is able ‘“‘to handle all kinds of perishable

foodstuffs and other commodities from and to every

“part of the country” (R. 71) as well as controlling

the movement, direction’ and handling of cars in _

transit under what are termed its ‘“‘Car Service Op-

erationis.”* Pacific Fruit ca advises consumers

that

- TEMPCO-VANS, the most modern trailers de-

signed especially for combination highway and

.piggyback operation, are the latest: addition to

. PFE’s first family of peristable transportation.

_ Shippers and consignees want their. shipments

transported speedily and smoothly and a

to the market in, top condition. 4

Respondent advertises, ineniial that it has ‘‘ offices

ahd agencies in all principal Western producing

areas” and in ‘“‘all major receiving and consuming

areas.” (R. 70.)

other refrigerator car company which does not service its rolling °

stock but simply leases its cars while an independently contracted

company ices and otherwise. services the railroad cars. See Het-

‘man v. Fruit Growers Express Company, 346 F.2d 947 (3d Cir.

1965), which is therefore distinguished from the present case.

8These consist “in large part of car distribution, the furnishing

of commodity protective services as ordered by- the shipper, and-

. diversion and passing service.” (R. 74, italics added:) Car

distribution “involves the provision of cars at proper places at the

proper times” in condition to transport perishables. Diversion -

- operations are explained as involving the rerouting of freight cars.

by respondent whenever the shipper calls P.F.E. to request a

change in destination; passing service involves notification to the ~ -

shipper by P.F.E. of the precise location’ of each car bearing the

shipper’s goods.

* ®Respondent itself has provided these italics in the original

publication, thereby deliberately emphasizing the carriage of goods .

.as opposed to the — of rail cars.

ee

r 9 Z

Respéndent describes its own en route services in

a manner most suggestive of a kinetic carriage ac-

tivity as distinguished from a static and limited rental ~~

and ice service: ee eo

[Refrigerator trailers. iia cars] are ‘ited for

frozen foods as well as fresh fruits and vegetables

and add to. the many other features of PFE serv-

_elece and convenience of pick-up. and delivery. (R.

73-74.) |

. [I]f after valuable produce ‘i is loaded into.a~

car and it is started on its way to the consuming

center, , . . it is learned that another area has

better demand and offers. a better price, the ship-

per will call us on the telephone and: request that

__we “divert” the car from its originally billed

‘destination to the new destination. . . . In.

handling some 285,000 carloads of perishables a

year we are called upon by shippers to accomplish ©

in the neighborhood of 170,000 diversions a year.

'. . We-have sizable diversion forces at Chicago

. [which] are aware at all times where each

| and every loaded car may be and we keep shippers

informed when their shipments i aa certain

| points. . (R. Mahia

In 1965 P.F.E.’s cars ibsoaiibiik for over one billion

miles on railroad car movement 1 in the United — ia

107.C.C., Annual Reports: supra, note 6. By comparison, in 1962

the estimated total freight car-miles by all “Class I railroads”

(traditional railroad corporations, excluding terminal companies, —

switching roads, and particularly small. railroad companies) was

- approximately twenty-seven billion miles. U.S. Dept..of Commerce,

Statistical Abstract of the United States (1963), No. 787, p. 579.

*- 10

All of respondent’s rolling stock- illustrated in its.

_ brechures,--and—also. plainly _visible to passersby .on

railroad: or highways, clearly bears respondent’s name;—~—. _

_ while the insignia of its’ owners appear’ in distinctly

subordinate detail. The public, moreover, is exhorted

to. contact P.F.E. directly “for the finest in perish-

able transportation ‘service throughout America”

{ since respondent maintains ‘‘offices in principal cities

;- to supply your needs fast—wherever you are.” (R. - -

' 70.) Perhaps most revealing is the fact that P.F.E.

facilitates direct contact with the consumer by holding

itself out to the public in major cities across the —

| United States as a carrier by railroad. A random

}. . sampling revealed that P.F.E. is listed—under its

own corporate name—in the recent classified telephone

directories of Minneapolis,’ Omaha,” Sacramento,'*

- and San Francisco under the indéx heading “‘Rail-

road Companies” and of Chicago,’* Cincinnati,’

Cleveland,” Denver,"* Detroit,’® Kansas City (Kansas

and Missouri), Pittsburgh," Portland (Orégon),”

41p. 557 (November, 1966).:” .

'12p, 333 (1966). |

18. 576 (January, 1967). Petitioner’s injuries were. sustained *

at respondent’s terminal located but a short distance from Sacra-

mento, California.

14p, 761 (1966): . -

15p, 1650 (1966).

_ 8p, 534 (June, 1966).

“17%p, 809 (April, 1966).

18p, 643 (July, 1966).

1®p. 1164 (September, 1966).

20p. 620 (February, 1967).

1p, 636 (Deceniber,: 1966).

2p, 629 (1966-1967). —

“1

Salt Lake City,”* Seattle,* and Tucson”® under the

heading ‘‘Railroads”. aries, <a.

- ‘Pacific Fruit Express owns extensive terminal and

service properties and facilities, none. of which is or -

was wholly or partially owned by Southern Pacific or

Union Pacific, respondent’s owners. (R. 35.) Respond-

ent maintains and operates five car shops at which .

railroad freight cars are built and repaired at various

locations in the United States and has Supplemental

light repair and cleaning stations at a number of

places through the western states.2¢ (R. 72.) Respond-

ent operates eleven ice manufacturing plants nation-

ally and also purchases ice.from other commercial

concerns to meet its refrigeration demands. (R: 72.)

Deliveries « of ice are made on railroad tracks owned

- by respondent, and repairs are accomplished by haul-

ing cars over tracks owned by P.F.E. by means of .

locometives also owned by respondent. (R. 37.) Re--

spondeht is not only required to operate and maintain

its own railroad equipment in compliance with: the

- Federal Safety Appliance Act?’ but also undertakes

*8p, 396 (June, 1966). This, it should be noted, is. respondent’s

‘state of incorpération. :

4p. 584 (March, 1966). Bh

.*5p. 319 (June, 1966). a ease ° :

_26Common carriers by railroad, it appears, :characteristically

maintain and operate facilities for the construction and repair of

their own stock. Cf. Southern Pacific Co. v. Gileo, 351 U.S, 498

(1955). . : . be

2727 Stat. 531, 45 U.S.C. §1 et seq. This fact was found and

reported by the California District Court of Appeal in Pacific

Fruit Express v. McColgan, 67 Cal.App.2d 93, 97, 153 P.2d 607

' (1944). That court also noted that maintenance and repair of re-

spondent’s railroad cars was accomplished both‘ at its own facili-

ties and, occasionally, at railroad repair shops owned by other

companies. Id, ' ak

td

Oe ar

al Ni ia 2S

,, (a S a | ee o Se 2. 2 ae Bes 2 ee

" proper service on its part.

m °

to repair reilroad equipment owned by other com-

panies at P.F.E. maintenance facilities.”*

Respondent’s revenues. are generated by charging

rates varying from 4.5 to 5.25 cents ‘per mile for the

- use of each of its railway cars.”® (R. 35.) Respondent’s

fees, therefore, are regularly based not on the pro-

viding of refrigeration service to a particular com-

pany for a specified term, nor on the length of service

of a railroad car, nor on the actual cost of providing

the services, but directly on the distance of the car-

" riage of goods.*° Respondent ‘“‘files financial data with

the Interstate Commerce Commission” which also pre-

scribes the form of accounts to be used by respondent.

(R. 35.)° P.F.E.’s contracts are subject to approval

by the I.C.C. before becominng operative,’ thereby

giving the Commission de facto regulatory authority .

over re rates. Conversely, Pacific’ Fruit Ex-

#

28See findings of facts by the distrigt court i in Gaulden v. South-

ern Pacific Co., supra, 78 F.Supp. 651, 654.

297d. Respondent may on occasion lease a refrigerator car

directly to a shipper on a monthly basis.

30The fact that respondent customarily issues no bill of lading

or statement of charges directly to- thé shipper but instead relies

upon contracting carriers to collect and forward its revenues is

immaterial to any of the issues in this action. See Union Stockyard

v. United States, 308 U.S. 213 (1939), where Union Stockyard

was found to be a common carfier by rail notwithstanding the fact |

that all of its services ‘and charges ‘were rendered solely and

directly to railroad companies and in no respect to the general

-publie.

31Gaulden v Sqnthern Pacific Co, supra. The court also found

that the contract with respondent's owners, approved by the I.C.C..

in 1942, provided for indemnification by P.F.E. of its owners

against liability for injury or damage to personnel or property of

- the owners while acting on behalf of P.F.E. and fixed responsi-

bility of P.F.E. for damage ‘to any — as a result of any im-

‘

\ ia ; 2B e

press “does not report to the California Public Util-

ities Commission, nor to any other state utilities com- |

mission.” (R. 35.)- ae

_, The district court believed that the Federal teiphoy-

ers’ Liability Act does not embrace respondent’s oper-

ations as reflected by this record. The Court of

Appeals; believing that ™ [ w]ere the slate clean, we

_ might well be convinced by [ petitioner’ s] argument

_ for a broader definition,” elected nonetheless to reviv-

ify the strict construction applied originally by the — :

* district court in 1948 in Gaulden v. Southern Pacific

Company, 78 F. Supp. 651 (N.D.’ Calif. 1948), aff’d

without further opinion 174 F-2d 1022 (9th Cir. 1949),

the earliest decision to approach the question of Em-

ployers’ Liability Act appiidation to a railway refrige-

ration company. |

REASONS FOR GRANTING THE WRIT

Although the Employers’ Liability Act may be the

most litigated statute in American law, the judicial

literature is almost totally barren of any conscientious

effort to define the boundaries of this remedy.- The

crucial operative phrase, ‘‘common carrier. by rail-

road”, has been subjected only to the most superficial

‘ analysis, usually en passant, during the sixty year

history of the act and is now urgently in need of ju-

dicial amplification lest a chance misconstruction be-

come the means of depriving thousands of . railroad |

- employees of the protection established by Congress.

In 1964 over six thousand -persoris were employed’ by

\

14 ©

railroad refrigeration companies owned or controlled

by other railroads,” and they are foreclosed from re-

covery under the. Employers’ Liability Act notwith-

standing the fact that their employment continuously

* exposes them to the identical hazards’ which confront

railroad workmen generally. ‘Moreover, the entire

fabric of the F.E.L.A. is now jeopardized: by a re-

gressive force contrary to modern construction of the

aet, for the decision of the court beiow is not limited

in its. impact to petitioner. or his co-workers. It can

easily be predicted, for example, that an identical

question will soon present itself in the rapidly expand-

ing area of trailer-on-flatear (TOFC or “piggyback”)

operations.® ; ; 7

A. THE DECISION OF THE COURT OF APPEALS CONFLICTS

_ WITH DECISIONS OF THIS COURT AND OF OTHER FED-

-ERAL AND STATE COURTS ,

Petitioner is mindful of the fact that Pacific Fruit

Express Company has been involved in earlier Em- __

ployers’ Liability Act litigation on three occasions, in _

each instance as a co-defendant with one of its owners.

Gaulden v. Southern Pacific Co., supra, 78 F.Supp.

. £°331.0.C., Annual, Reports, Transport Statistics in the United

States, supra, Part 9, p. 7 (1965). .

%3In. the wake of the decision in American Trucking Associations,

Inc. v.. Atchison, T. & 8.F. Ry. C0., 0. US: coon. , 18 L.Ed.2d 847

(1967), affirming the right of motor carriers to utilize transporta- |

tion by rail in place of exclusively highway transport, one must

expect continued expansion of railroad activities by companies

handling TOFC operations almost exclusively but not organized

within traditional “railroad” concepts. It thus seems inevitable

'. that the question must soon arise as to the appropriate remedy for

a “piggyback” workman injured in the preparation or execution

of carriage of goods by railroad flatear but not employed by a

general service railroad. .

15. |

651 (N.D. Calif. 1948), aff’d without opinion 174 F. 2d

1022 (9th Cir. 1949); Moleton v. Union Pacific Rail-.

road, 118 Ut. 107, 219 P.2d 1080 (1950), cert. den. 340 .

U.S. 932 (1951) ; Aguirre v. Southern Pacific Co., 232

Cal.App.2d 636, 43 Cal.Rptr. 73 (1964). Moleton and

Aguirre, uncritically and without renewed scrutiny,

rely almost exclusively upon Gaulden, the California

court finding the facts in all three actions to be sub-

stantially’ identical. 232 Cal.App.2d at 645, 649. The

' present case, however, clearly presents important and

unresolved questidns essentially of first impression. In

_ contrast to each of the earlier suits, petitioner has not.

joined either of respondent’s owners as a party de-

. fendant. Nor has petitioner sought to impute any. of

the operations of: P.F,.E.’s owners to respondent itself

as was done in each of the other suits. Most signifi-

cantly, each of’the prior actions suffered from concen-

‘tration on’ questions of agency, the contract between

P.F.E. and its owners, joint enterprise and. other |

theories directing attention away from a close exami-

nation of respondent itgelf. | Zs

Plaintiff in Gaulden made ho real effort to show

P.F.E. to be a common carried by railroad. His brief.

{ argument on: this point was limited to urging the’

| | 7 Court of Appeals to so find (if it rejected his intended

' approach to.the case) simply because “Congress by:

the 1939 amendment. to the Federal’ Employers’ Lia-

bility Act liberalized and broadened the scope of the

Act as to what constitutes interstate commerce, .. .”

Brief for Appellant [Gaulden], 7-8, 2555 Records of

the U.S. Circuit Court of Appeals, Number 12062. In.

‘

16

Moleton, the’ petitioner devoted only ‘a very minute:

part of his brief accompanying his petition for a. writ

of certiorari to urge that ‘‘these employees of the

, express company are engaged in railroad work the

same as persons in the general employ of the railroad

company itself.” Brief for Petitioner [Moleton], 33,

4163 United. States Supreme Court Records, October

Term, 1950; No. 468. Each of the earlier suits directed

‘all of its thrust to the proposition that P.F.E. was

essentially an alter ego of an operating rail carrier..

Each shared a common shortcoming: court and coun-

“\sel engaged in a fruitless search for the railroad—as -

between respondent and one of its owners—as if there

couldbe convincing foree in the bare fact that re-.

spondent ‘commonly works with "railroad companies.

‘It -was this attitude, taken by the court below and

consisting of a harsh_and narrow view of the prob-

lem, ‘which militates in favor of review by this: ‘Court

to bring respondent into the .acceptable modern ap- -

'~ ’ proach to the Employers’ Liability Act. -

‘ The court below refused to attach significance to

the most current pronouncement of this Court regard-

ing the breadth of the F.E.L.A. One cannot reasonably

presume’ that the unambiguous language of Parden |

- v. Terminal R. of Alabama Docks Dept., 377 US.

184, 189-190. (1964), is without great pet in - this “

action: , ‘2 :

The language. of the FELA is at least'as broad °

and all-embracing as that of the Safety Appli-

ance. Act or the Railway Labor Act, . -¢ » If

Congress made the judgment that, in view of the’

ot

dangers of railroad work and the difficulty of ©

recovering for personal injuries under existing —

rules, railroad workers in interstate commerce

should be provided with the right of action cre

ated by the FELA, we should not presunte to say, .

in the absence of express provisions to the con- |

trary, that it intended to exelude a particular |

«group of such workers from the benefits conferred —

by the Act.

‘Congress enacted broad _protection for the working

“man. against the perils of interstate rail commerce. -

‘It is the “danger to be apprehended” that invokes

_ the shield of federal legislation, and it is immaterial |

- from which’ segment of the railroad industry the -

' peril may emanate. United States v. California, 297

U.S. 175, 185 (1936). This Court long ago determined

that Congress intended to utilize the maximum reach

of its authority to protect the railroad working: force

in interstate commerce ‘‘no matter what the source of

the dangers which threaten it.” Mondou v. New York,

N.H. & H. R. Co., 223 U.S. 1, 51 (1912) (the on

. F.E.L.A. Cases).

The dangers of railroad work, the difficulties of re-

covering adequate compensation for railroad-assdci-

ated.-injuries, the threat .of injury. to ‘interstate

commerce and persons engaged in: furthering com- -

merce are all present in respondent’s operations in the ~

same manner and to the same degree that they exist

in the business of any general rail carrier. This is

made more apparent by the fact that respondent’s

operations include every one of the elements found —

ss

_ to be significant in. Parden in defining @yeommon car-

. Tier by railroad.*

- Whether a company such as respondent is’ a com-

mon carrier under fedéral railroad legislation depends

upon what it. in fact does, not upon its. corporate

character or its. defensive protestations when threat-

ened with suit. United States v. California, supra, 297

U.S. 175, 181. Parden stands for an uninterrupted

' -judicial policy that thé substance of a company’s oper- .

ations determines its F.E.L.A. status. The court below

rejected this cardinal principle and adopted a pecul-

iarly narrow approach toward the Employers’ Lia-

bility Act.

‘In reaching its conclusion, the court below also

rejected another distinguished line of cases which is

both cogent and relevant in. this, discussion—the ter-

minal company decisions. A terminal company ordi-

~ narily prepares, services, supervises and occasionally

_ 84At the outset, the Parden opinion describes thog» features of

the Terminal Railway which: make it “undisputably a common car-

rier by railroad engaging in, interstate commerce”:

Consisting of about 50 miles of railroad tracks . _ + + it serves

* those docks and several industries situated in the vicinity, and»

also operates an interchange railroad with several privately

‘owned railroad companies. It performs services for profit.

. It conducts substantial operations in interstate commerce.

-. It has contracts and working agreements with the various rail- |

road brotherhoods . . . ; maintains its equipment in conformity .

with the Federal Safety Appliance Act ... ; and complies °

with the reporting and booking requirements of the Interstate.

Commerce Commission. Jd., 377 U.S. at 185.

Respondent too owns tracks, serves shippers and other carriers

with its facilities, operates in conjunction with other railroads, .

endeavors to be profit making, operates in interstate commerce,

has labor agreements with railroad brotherhoods, complies with the

various safety appliance acts and regulations, and handles its

financial records in ¢ompliance with regulations promulgated

and ee by the 1.C.C, ;

19

operates railroad equipment . between "journeys and

rarely acts upon the equipment while it-is actually.

_ in use crossing state lines.*® As such these businesses

_ provide a service to general service rail ¢arriers; own

little and sometimes no railroad track or equipment,

- and—most significantly— differ from respondent in

that they exercise no control over the actual interstate .

Management and carriage of goods. There ‘does not

seen to be any instance of a terminal company hold-

. ing itself out to the general public’ by advertising or

directory listing as a common ier by railroad.

Nonetheless, because of the intimate involvement of

terminal companies in interstate railroad commerce,

they are included within the operation of the Inter-

state Commerce Act, Union Stockyards v. United -

States, 308 U.S. 213 (1939), the Hours of Service

Act, United States v. Brooklyn Eastern District Ter-

minal Co., 249 U.S. 296 (1919); Bush v. Brooklyn

Eastern District Terminal. Co., 218 N.Y.S. 516, 218 - -

App. Div. 782 (1926), the Federal Safety Appliance

Act, United States v. California, supra, 297 U.S. 175;

McCullough v. Jacksonville Terminal Co., Fla. App., .

176 So. 2d 345 (1965), and—most notably—the , Fed-

‘ -eral Employers’ Liability Act. Fort Street. Union

Depot Company v. Hillen, 119 F.2d 307 (6th Cir. .

1941) ; Maurice v. California, 43 Cal.App.2d 270, 110

P.2d 796 (1941). In McCabe v. Boston Terminal Co., °

308 Mass. 450, 22 N.E.2d 33 (1939), the Massachusetts

Supreme Court had no hesitation in finding the ter-

35See Fort Street Velen Depot ails v. Hillen, 119 F.2d

307 (6th Cir. 1941); McCullough v. Jacksonville Terminal Co.,

Fla.App., 176 So.2d ~~ (1965). 2

aa

minal company to be included under the Federal Em- .

ployers’ Liability Act but applied strict rules in the

construction of the statute of limitations applicable .

thereto. This Court granted certiorari. and, in a Per

‘Curiam decision, rejected the narrow procedural hold-

ing of the lower court and reversed, thereby permiat-

ting the plaintiff therein to amend his pleadings to

state a valid eause of action. 309 U. S. 624 (1940).

An organic interpretation’ of the F.E. L.A. as rem-

edying hazards and wrongs inherent in an entire

‘system of transportation is threatened by a highly ~

: particularistic and narrow philosophy, applied. by the

eourt below. This clash is apparent and of resounding

significance. Resolution by this Court is essential. It

is insufficient to rest upon the out-dated line of so-

ealled: “express company” eases. The obiter dictum

of Justice Van Devanter in Wells Fargo v. Taylor,

254 U.S. 175, 187 (1920), certainly does not now suf-

fice—if ever it truly did—to resolve this problem; to

define a common earrier by railroad as ‘‘one who-

’ operates a railroad ds a means of carrying for the.

public,—that 1 is to say, a railroad company acting as a

common ¢arrier” wholly. distorts the expressed will of

Congress in this field. This completely ignores such

_ railway .operations as terminal companies, as well as

other less generalized railroad operations which have °

"since been brought within the F.E.L.A.** Yet the tired i

36See, for. example, Eddings v. Collins Pine Company, 140 F.

Supp. 622 (N.D. Calif. 1956). This well-reasoned opinion found

a lumber company which wholly owned and controlled a small

railroad corporation to be a common carrier by railroad even

though the lumber company was not organized as a railroad

‘earrier under ‘traditional lines. ; ;

21

reasoning of Wells Fargo, not even essential to the

resolution of the question presented in that case, is

, too frequently resurrected to provide a shelter from

- the F.ELL.A. notwithstanding the total readjustment

of interstate commerce thinking after the revolution

of New Deal legislation and litigation.*” The’ early

tendency to narrow and dilute the F.E.L.A. which

occupied much of the judicial literature during. the’

first two decades following its enactment has been -

abandoned. The clear and explicit Congressional man- -

' date for broad application has been recognized in

almost every area of the railroad industry ‘save the .

one presently before this Court.®*

37Respondent devoted a substantial portion of its argument to

the district. court ‘to an exposition of the Wells. Fargo decision.

(R. 16.) an e Be 4

88Wells Fargo cannot be credited with any vitality in approach-

ing the present question. -It represents only a gratuitous finding

. that the express°company was not the common earrier by railroad

involved in that case. It is noteworthy that express companies

have subsequently been recognized and classified as common ear-

riers, and any exclusion of the application of the F.E.L.A. arises

_ from their lack of railroad appliances and facilities rather than

from any shortage of transportation activities in interstate com-

merce; they.are common carriers by means other than railroad.

Fleming v. Railway Express Agency, 161 F.2d 659 (7th Cir. ~

1947) ; Jones v. New York Central, 182 F.2d 326 (6th Cir. 1950) ;

see also Railway Express Agency v. Esformes, 174 N.Y.S.2d 878, .

12 Misc.2d 1038 (1958). = ; |

It bears comment that the court below cited Hetman v. Fruit

Growers. Express Co., supra, 346 F.2d 947 (3d Cir. 1965), as

following Gaulden. The court in Hetman,. however, decided that it

“need go no further than to cite Gaulden.. . . .” 346 F.2d at 949.

Since the claimant in Hetman was not employed by the refrigera-

tion car company, that decision suffers from the same defect as

-Wells Fargo, and any discussion of the status of the refrigeration

company itself is obiter dictum; F.E.L,A. liability could not have

attached to the car owner in any event since it did not employ

' .the injured party. Moreover, Fruit Growers Express is signi-

ficantly different in nature from respondent herein, and the

_ Hetman decision is therefore distinguishable. See note 7 supra.

- LF POY ARR EST

99

B. THE DECISION OF THE COURT BELOW PREVENTS UNI-

| FORM APPLICATION OF A COMPREHENSIVE CONGRES- |

SIONAL PROGRAM, LEAVING UNANSWERED SEVERAL

QUESTIONS oF FAR REACHING SIGNIFIOAN CE

The Court of Appeals i in this case has resurrected a

barrier to the uniform application of the remedial leg-

islative system governing the interstate transportation

of commodities by rail. This totally ignored the de-

velopment of the F.E.L.A. which has: kept pace with

the growth of ‘remedial law generally, and in partic-

wlar with the maritime sector. Compare, for example, —

Southern Pacific Co. v. Gileo, 351 U.S. 493 (1955),

and Guiterrez v. Waterman Steamship Corp., 373

U.S. 206 (1963). My

While government has rarely ever adopted ‘a

- measure designed.as a solution of some important

social problem that could not be improved with

time and experience, there has not yet been found

ariy method of compensating injured railroad men

and their next of kin that can be substituted sat-

isfactorily for that provided by Congress in the

FELA and the group of laws designed to supple- .

ment it. It has proved worthy to stand beside and

in a position of equality with the remedies open

to seamen, both in admiralty and in the law -

courts. Griffith, “The Vindication of a National

Public Policy Under the Federal Employers’ Lia- |

bility Act,” 1953, 18 Law and Contemporary

Problems 160, 187.

It should be a matter of great and immediate concern |

that the decision of the court below flies in the face

of this continuous trend toward, liberalization by ex-

- pressly electing to construe the central language of

¢

93

the F.E.L.A. “narrowly” while rejecting the ‘broader

definition” urged by petitioner. (R. 91.) The Court

of Appeals candidly admitted its belief that the more

remedial solution would be appropriate “were the slate

clean,” but nonetheless chose to adhere to the restric-.”

_ tive reasoning which was born of Gaulden v. Southern

Pacific Co., supra, 78 F.Supp. 651. . e

©

This Court has heretofore had occasion to note the

need for close scrutiny of the actions of lower courts

.in F.E.L.A, matters, since it requires rigorous super-_

vision to insure that the beneficial purposes of that

act not be thwarted by a “hostile philosophy.” Wilk-

erson v. McCarthy, 336 U.S. 53, 69 (1948) (concur-

ring opinion). The inference is inescapable from its

brief opinion that the court below recognized the

common carrier and railroad attributes of respondent .

and also. observed the identity of railroad perils

facing respondent’s employees. Notwithstanding this,

the Court of Appeals opted in favor of a judicial

philosophy inimical to modern F.E.L.A. thinking.

It cannot be ascertained with any assurance whether

construction of the crucial operative phrase ‘‘eommon

carrier by rail” is properly a matter of fact or law.®

Courts dealing with this language have, however, pro-

8°The distinction between a common carrier and a private car-

rier is often submitted to a jury for decision in analogous cases.

‘ Cf. Arrow Aviation vy. Moore, 266 F.2d 488 (8th Cir. 1959) where

the common carrier status of an air carrier was affirmed, the court

relying in part upon the fact that the defendant advertised as a

- common carrier in telephone directories as does respondent herein:

Dairymen’s Co-op Sales Assoc. v. Public. Service Commission of

Penn., Penna., 177 A. 770, 98 A.L.R. 218 (1935), where a market-

ing service for dairy concerns was found not to-be a common

carrier. a '

24

ceeded generally without hesitation to act by sum-

mary judgment or other summary ° procedures.

Whether this question should more properly be ad-

dressed to the judgment of a court or a jury, it is

plain that no soundness inheres in a determination

- made without reference to some applicable standard.

Yet the decision below is not and cannot be explained

_in terms of any of the principles heretofore enunci-

ated in the construction of the F.E.L.A. If this de-

_ @ision should pass unreviewed, the doors of the courts.

. are closed to litigants—like petitioner—who. labor

_ under the very dangers which the F. E. L.A. was ; de-

signed to alleviate. yO

eee Re a ee ee eS

gad The language of H amarstrom v. Hiceoutt Kansas-

Texas R. Co., 233 Mo.App. 1108, 116 S.W,2d 280, 286 °

(1938), is iltuminating:

. [t]he expressiorr “by railroad” in the federal

statute is but descriptive of the kind of common

carrier to -which the statute relates, distinguish-

ing railroads from common carriers of other

kinds to which the act does not extend, and .

by the statute, it was not. attempted or intended

. to define the kind of instrumentalities used on -®

which their liability for negligence should exist’ Ay

or by which it should be limited . .. (Citing

Second Employers’ agape: A Cases, supra, 223.

US. 1.)

Pacific Fruit, Express Company has labored mightily

to create for itself a treasured. immunity from lia-

bility under the F.E. L.A, Nor is at, presently subject

to uniform state regulation, for it does not report to

'-the California Public Utilities Commission or to any

a

4°

FRR encanto cre menos

gress in this field.

25

other state utilities commission.*® .It now enjoys the

incredible luxury of escaping responsibility under any

- comprehensive regulation or uniform liability system.

' Thus it is imperative that this Court act to establish

guidelines to restore the symmetry desired by Con-

.

» CONCLUSION |

For the foregoing reasons, this petition for a writ

of certiorari should be granted. |

Dated,-San Francisco, California, : ?

August. 2, 1967, ae

Respectfully submitted, roar

Dav S. Levinson, _ ( ;

: | Attorney for Petitioner: —

ARNE WERCHICK, ane

Of Counsel.

' 4°California Public Utilities Code § 202 excuses from the opera-

tion of that Code enterprises in interstate commerce. Were it not

for this exemption, it appears that P.F.E. would be a common.

carrier by rail, under applicable California statutes. Pub. Util.

Code § 229 includes all tracks, depots, yards, grounds, terminals

and terminal facilities, and all other equipment used €n rail trans-

portation within the term “railroad”; § 230 defines a “railroad

- corporation” as every corporation which owns, controls, operates

or manages any railroad in the state; § 211 declares every such

railroad corporation to be a common. carrier. Compare Arizona

Constitution, Art. 15, § 10; Idaho Code Annotated §§61-113, 61-

107; Montana Revised Code Anno. @@72:114, 72:115; Nevada

Revised Statutes § 704.020; Oregon Revised Statutes § 760:010,

all to the same general effect as the parallel California law.

(Appendices A and B Follow)