# Brief for the Respondents in Opposition — Quirk v. New York, Chicago & St. Louis Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondents in Opposition
- **Published:** January 1, 1951
- **Citation:** 342 U.S. 871

## Text

of the United States

Octoszz Term, 1951

No. 238

hicaies

DOROTHEA QUIRK, Administratrix De Bonis Non of the
Estate of Edward E. Quirk, Deceased, ,
we i Petitioner,
THE NEW YORK, CHICAGO AND ST. LOUIS

RAILROAD COMPANY, a Corporation, Sometimes
Known and Described as Nickel Plate Road,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI AND BRIEF THEREON

Russe. P. Harker
Frankfort, Indiana

Attorney for Respondent
W. F. Wzsr

Cleveland, Ohio
CrumPacker, May, Beamer, Lavy & Szarer
South Bend, Indiana
Harker & Inwin.
Frankfort, Indiana
Of Counsel

INDEX OF BRIEF
Page
Regarding Petitioner’s Summary Statement
in the Petition (P. 1-4) and Petitioner’s
Statement in the Brief (P. 8-11) ........ 2

Regarding Petitioner’s Assertion of this
Court’s Jurisdiction in the Petition (P.
4-6 and in the Brief (P. 8) ............. 5

Regarding Questions Presented and the

Reasons for Allowance of Writ ......... 6

Summary of Argument .................. 7

55 Ss Ki Maiea ween nsesthvkasasccy

INDEX OF AUTHORITIES CITED

Page
Statutes:
Federal Employers’ Liability Act, 35 Stat 65 (1908);
53 Stat 1404 (1939); 45 USCA, Sec. 51 ....... 8, 9, 26
Jurisdictional Statute, 62 Stat 930 (1948); 28 USCA,
WL SOME: Naxos os atveencdebatnitas odin 8
Indiana Acts 1937, Ch. 292, Sec. 3, p. 1341; B. R. S.
PERIL C Sry cere PIPE RIN SY 26
Rules:

Federal Rules of Civil Procedure, Rule 12(h), super-
seding 18 Stat 472 (1875), 24 Stat 555 (1887), 25
Stat 436 (1888), 36 Stat 1098 (1911), Judicial Code,

Sec. 37, 28 USCA (1927 ed), See. 80 .............. 25
Federal Rules of Civil Procedure, Rule 50 .......... 25
Cases:
A. B. Small Co. v. Lamborn & Co., 267 U. S. 248, 254;
45 S Ct 295; 69 L. Ed. 597, 602 ................ 22, 24

Bell v. Hood (CCA Cal. 1945) 150 Fed (2) 96, 98 ....25

Brady v. Southern R. Co. (1943) 320 U. S. 476, 479;
64 S Ct 232; 88 L. Ed. 239, 243 ................ 22, 27

Chicago, ete. R. Co. v. Bond (1916) 240 U. S. 449, 457;
36 S Ct 403; 60 L. Ed. 735, 7388 ..............000 9

Chicago, ete. R. Co. v. Hedges, admx. (1888) 118 Ind.
i Set ee Ee OD 65 kas ore kak 27

Delaware, ete. R. Co. v. Koske (1929) 279 U. S. 7, 12;
49 3 Ct 202; 73 L. Ed. 578, 582 ... 2... cee 27

Page

Electro, ete. Co. v. Strong (CCA 9th Cir 1936) 84 Fed
EE gb varie cease puae edie deakehen ea han 20

Ex parte McCardle 7 Wall. (1869) 19 L. Ed. 294, 265. .25
Glover v. Union, ete. R. Co. (D C Idaho 1938) 21 F.

PE cea wcreienotb iw radadbensseso-sneaeekws 14
Gulf, ete. R. Co. v. Wells (1928) 275 U.S. 455, 459, 48
fi 2 rece FY. Serer err reer een ee rer 27
Hamble v. Brandt (1933) 98 Ind. App. 399, 404; 189
RR ane rr nn epee eee 27
Hill v. Walker (CCA 8th Cir 1909) 167 Fed. 241, 243
ee ons oa en oc oe a Oe Aw eRe 20
Hull v. Philadelphia, et. R. Co. (1920) 252 US 475,
479; 40 S Ct 358; 64 L. Ed. 670, 673 ............... 9
Krysiak v. Pennsylvania R. Co. (CCA 3rd Cir 1921)
Se Ue Ps SO UD Av coe acensencsbacwonnesesds 14
MeNutt v. General, etc. Corp. (1936) 298 US 178, 189;
56 S Ct 780; 80 L. Ed. 1135, 1141 .............. 20, 21
Middleton v. Southern ete. Co. (CCA 5th Cir 1932)
he rec ka eek ven haan ab 22
Minnesota v. Hitchcock (1902) 185 US 373, 382; 22
gig es Fe Ree rere es 25
Mitchell v. Maurer (1934) 239 US 237, 244; 55 S Ct.
EE A Re Be 6 66a o Wide eeuee na vaeaass 25
New York, ete. R. Co. v. Miller, admr. (1936) 101 Ind.
Bae GIG GE Te AGE FO ne ccesnicdvcsscsescucess 27
New York, ete. R. Co. v. Powell (1943) 221 Ind. 321;
Bene Ge Beer Gee Gk GE 6 is vtcecccciensues 22, 23, 27

:
1
ee

Page
Pritt v. West Virginia, ete. R. Co. (1948) (W. Va.)

51 SE (2) 105; 6 ALR (2) 562, 574, cert. den. 336
ee Oe OMe MU MN oy bok Solow ey Vs orks oat

Royalty ete. Corp. v. City of Los Angeles (CCA 9th
Cir 1938) 98 Fed (2) 551, 553 ................ 20, 21

Robinson v. Baltimore, ete. R. Co. (1919) 237 US 84,
94; 35 S Ct 491; 59 L. Ed. 849, 853 .................

Sassaman v. Pennsylvania R. Co. (CCA 3rd Cir 1944)
BOG Wd (3) SOG, GEG GGG ios oom ovine

Scocozza v. Erie R. Co. (CCA 2nd Cir 1949) 171 Fed
PE sok de ce wicay hey so verse isd Soe

Selite Corp. v. Decalite Co. (CCA 9th Cir 1938) 96
Pe ce ey

Shafor v. Illinois, ete. R. Co. (1916) 172 Ky 337; 189
WP AOS Se Ss Shay Sees ero Se ie

Shanks v. Delaware, ete. R. Co. (1916) 239 US 556,
599; 36 C Ct 188; 60 L. Ed. 437,438 ............ 22, 23

Stevenson v. Lake, ete. R. Co. (CCA 6th Cir 1930) 42
rah “eo hearin’ ay RT PIT EM Rip nora oer

Texas, ete. R. Co. v. Gulf, ete. R. Co. (1926) 270 US
266; 46 S Ct 263; 70 L. Ed. 578, 582 ...............

Thomson y.’ Gaskill (1942) 315 US 442, 446; 62 US
ve ee ee rd ee

United States v. Wilson (CCA 10th Cir 1935) 78 Fed
We PIE i bapa yeas ee igh 20, 22

Wabash R. Co. v. Zayaec (CCA 7th Cir 1929) 30 Fed
Fe PI hin es esa cdce Wises chee oh diese

Young v. New York, ete. R. Co. (CCA 2nd Cir 1934)
74 Fed (2) 251, 252

RP SSS SBE Rese: BS 6 SAR Se Oe ee

ii mensoreneoc nea
Fo TAS Te ease et rr

IN THE

Supreme Court
of the United States

OctoBer Term, 1951

No. 238

DOROTHEA QUIRK, Administratrix De Bonis Non of the
Estate of Edward E. Quirk, Deceased,

Petitioner,
vs.

THE NEW YORK, CHICAGO AND ST. LOUIS
RAILROAD COMPANY, a Corporation, Sometimes
Known and Described as Nickel Plate Road,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI AND BRIEF THEREON

(The repeated use, in referring to petitioner’s petition
and brief, of the words ‘‘petitioner’s petition and brief’’
would unnecessarily extend this brief. Hence, with the in-
dulgence of the court, where we refer to petitioner’s peti-
tion and brief herein, we will use only the letter ‘‘P’’ fol-
lowed by the number of the page of petitioner’s petition
and brief, e. g. ‘‘P. 1’’).

MERE RM CREF L ALE DHE EN RHEE TER IE SER

PEP ETRE eee Oe

2

Regarding Petitioner’s Summary Statement in the Petition
(P. 1-4) and Petitioner’s Statement in the Brief (P. 8-11).

The first paragraph of petitioner’s summary statement
(P. 1-2) is inaccurate, because it fails to show that juris-
diction was laid in the complaint in this action solely on
the ground that a statute of the United States was in-
volved (the Federal Employers’ Liability Act). The com-
plaint did not allege diversity of citizenship, and such
diversity was not supported by any evidence, and the trial
court’s jurisdiction, as well as petitioner’s right of recov-
ery, depended upon the establishment of employment in
interstate commerce.

We submit that the sole question involved on this ap-
peal is as follows:

Was decedent, at the time he received the injury, which
caused his death, engaged in his employment for defend-
ant so as to invoke the provisions of the Federal Em-
ployers’ Liability Act, or give the United States District
Court jurisdiction laid exclusively under that Act? More
particularly, was he still within his employment on the
basis that he was going home from work, or had his work
terminated for the day prior to his injury?

Defendant’s contention that the trial court was with-
out jurisdiction under the Federal Employers’ Liability
Act was raised at every opportunity and by the following
methods:

1. By denial, in rhetorical paragraph 3 of defendant’s
answer, of the jurisdictional allegation in the complaint
(R. p. 6);

2. By motion to dismiss filed at the close of plaintiff’s

evidence (R. p. 9);
© SERS ANCA LED MANION —

_—
3

3. By motion to dismiss filed at the close of all the evi-
dence (R. p. 11);

4. By defendant’s tendered instruction numbered 1 (R.
p. 95);

5. By defendant’s objection to the court’s charge sub-
mitting the issue of interstate commerce to the jury (R.
p. 91, 1. 42 to p. 93, 1. 4);

6. By motion to set aside the verdict and dismiss the
action filed after the verdict was returned (R. p. 98).

Aside from the jurisdictional aspect of this question of
interstate employment, defendant’s assertion that plain-
tiff was not entitled to recover on the merits under the
Federal Employers’ Liability Act by reason of his ter-
mination of employment, as to which there was no con-
troversy in the evidence and as to which only a question
of law for the court was presented, was likewise tendered
to the trial court at all opportunities, as follows:

1. Defendant’s motion for directed verdict at the close
of plaintiff’s evidence (R. p. 10);

2. Defendant’s motion for directed verdict at the close
of all the evidence (R. p. 12) ;

3. Defendant’s tendered instruction numbered 1 (R. p.
95) ;

4. Defendant’s objection to the court’s charge (R. p. 91,
1. 42, to p. 93, 1. 4);

5. Defendant’s motion to set aside the verdict and enter
judgment in accordance with the motion for directed ver-
dict, filed after the verdict was returned (R. p. 97).

The facts set out in the summary statement in the peti-
tion (P. 2-4) are incomplete, because of the omission of
the following facts:

— BENE REEMA STII, IONE RRS BARES EIN RI GB ENC NG RFS

4

(1) defendant’s line of railroad, on which decedent was
killed, was intrastate (R. 23);

(2) decedent’s duties required him to be in charge of
the operation of a work train, including getting the train
out in the morning and putting it away at night, and dece-
dent could, and in accordance with his duties and prior
instructions from his superior, should, have stayed at the
scene of his employment at Muncie at his employer’s ex-
pense (R. 21, 22, 35, 36, 38 and 44);

(3) the Tipton gang working with the work train at
Muncie were conveyed by defendant by truck from Tip-
ton to Muncie and returned each day, and another gang
from Cammack also worked with the work train and start-
ed work before the Tipton gang arrived at Muncie, under
decedent’s supervision, and it was decedent’s duty to be
at Muncie to work prior to the arrival of the gang from
Tipton the day following the injury (R. 37, 38 and 48);

(4) work had been assigned to decedent at Muncie for
the day following his injury (R. 37) ;

(5) decedent had been instructed by his superior that
whenever he was in charge of his work train he should
stay with the work train, including getting the train out
in the morning and putting it away at night (R. 38, 44);

(6) after decedent ceased work at Muncie he traveled
42 miles to Tipton by private automobile of his own selec-
tion and procurement before boarding the motor car to
go to his home at Sharpsville, and made this trip for his
own private purpose to see a basketball game, and not on
any duty, or business, for respondent, and without any
consent, or instructions, from respondent, and respondent
did not own the automobile, nor pay any expense of the
operation thereof (R. 35, 39, 61 and 62);

5

(7) at Tipton decedent found that the motor car usual-
ly used by him had been taken by another employee, and
he started to Sharpsville on a motor car, which had never
been assigned for his use for any purpose (R. 39, 48, 49
and 67);

(8) decedent started from Tipton for Sharpsville two
hours after he had left Muncie (R. 49 and 60) ;

(9) respondent had not provided any motor car to de-
cedent for his use in going from Tipton to his home at
Sharpsville, but, at most, had merely not objected to such
use (R. 27 and 45);

(10) decedent, at the time of his injury, was not on the
premises where his day’s work had been done, nor on any
premises of respondent closely adjacent thereto (R. 35),
and

(11) decedent lived at Sharpsville, six miles from his
normai terminal of employment at Tipton, from his own
choice and not by any request, or compulsion, by respond-
ent (R. 20, 43 and 44).

The statement of facts in the brief (P. 9-10) are incom-
plete, because of omission of the same pertinent facts
above set out.

We would refer the court to the facts as set out in the
memorandum of the trial court (R. 99-100) and the state-
ment of facts set out in the opinion of the Circuit Court
of Appeals (R. 121-122).

Regarding Petitioner’s Assertion of this Court’s Jurisdiction in
the Petition (P. 4-6) and in the Brief (P. 8).
Petitioner rests this court’s jurisdiction on the asser-
tion (1) that the decision of the Circuit Court of Appeals
is in conflict with other decided cases, or (2) that this

—— RNY: re

6

decision decides an important question under a federal
statute, which has not been, but should be, settled by this
court.

It is respondent’s belief that the decision in this case
conflicts with no other decided case, as we know of no
other decided case, which has closely similar facts or which
declares any contrary principle of law, as hereinafter dis-
cussed in this brief.

It is likewise respondent’s belief that there is no ques-
tion decided by this case, which has importance, because,
under the facts of this case, there can be no reasonable
contention that decedent’s employment had not terminated,
as will later be discussed in this brief.

Regarding Questions Presented and Reasons for Allowance of
Writ (P. 6).

Respondent has already referred to our version of the
questions presented, (page 2, supra) and our contention
regarding the reasons relied upon for allowance of writ
(page 5, supra).

SUMMARY OF ARGUMENT

FeperaL Empuoyer’s Liapmiry Act AMENDMENT ....

DEcEDENT’s EMPLOYMENT TERMINATED UNDER
Uncontrovertep Eviwence ......................

Court’s Statement of Question Involved .........

Court’s Decision of Question ....................

8
ARGUMENT

Respondent’s Basic Propositions

Respondent will now state its propositions and argu-
ment to support its contentions on this appeal, and will
later (p. 27, infra) tender its specific answers to petition-
er’s petition and brief, referring to the respective pages
thereof.

Interstate Employment Jurisdictional
Proposition A

Diversity of citizenship was not alleged in the com-
plaint nor shown by any evidence, and, hence, cannot be
relied upon for jurisdiction. The complaint affirmatively
alleged that jurisdiction was involked under the Federal
Employers’ Liability Act and pleaded the necessary juris-
dictional amount (R. p. 2), and it was stipulated in evi-
dence that jurisdiction depended upon the Federal Em-
ployers’ Liability Act (R. p. 14). The allegation of em-
ployment in interstate commerce in the complaint neces-
sary to make the Federal Employers’ Liability Act appli-
cable was denied in respondent’s answer (R. p. 6), and this
jurisdictional fact was thereby placed in issue. If this
jurisdictional fact was not established, then the action did
not arise under a law of the United States and the trial
court had no jurisdiction.

62 Stat 930 (1948), 28 USCA, Sec. 1331 (Jurisdictional
Statute) ;
35 Stat 65 (1908), 53 Stat 1404 (1939); 45 USCA, Sec.

51 (Federal Employers’ Liability Act).

Employment Relation Essential
Proposition B
The Federal Employers’ Liability Act is applicable only

“eee ee

9

if the relationship of employer and employee exists (which
relationship did not exist under the undisputed evidence
in the instant case, since the work of decedent had ter-
minated prior to the injury which caused his death. )
35 Stat 65 (1908), 53 Stat 1404 (1939); 45 USCA, Sec.
51, (Federal Employers’ Liability Act) ;
Robinson v. Baltimore, etc., R. C., (1919) 237 US 84
94, 35 S Ct 491, 59 L. Ed 849, 855, 853;
Hull v. Philadelphia, etc., R. C. (1920) 252 US 475,
479, 40 S Ct 358, 64 L. Ed. 670, 673;
Stevenson v. Lake, ete. R. Co. (CCA, 6th Cir, 1930)
42 Fed (2) 357, 358;
Chicago, ete. R. Co. v. Bond (1916) 240 US 449,
457, 36 S Ct 403, 60 L. Ed. 735, 738.

Federal Employers’ Liability Act Amendment
Proposition C
The 1939 amendment to the Federal Employers’ Lia-
bility Act
(a) broadened the scope of the Act with regard to em-
ployments included, and
(b) terminated the rule that the character of the em-

ployment was determined by the specific work be-
ing done at the time of injury.

However, the 1939 amendment made no change in the
Act with regard to the necessity for the existence of the
relationship of employer and employee, nor with regard
to the termination of such relationship.

35 Stat 65 (1908), 53 Stat 1404 (1939 Amendment), 45

USCA, Sec. 51, (Federal Employers’ Liability Act, as
amended) ;

Pritt v. West Virginia, etc., R. C., (1948), (W. Va.),
51S. E. (2) 105, ALR (2) 562, 574, cert den 336
US 961, 93 L. Ad. 1113.

—— MLL STOLE PS EEE LIC ETE —

10

Decedent’s Employment Terminated Under Uncontroverted
Evidence

Respondent’s Statement of Facts
Proposition D

While it is conceded that the general employment of
decedent on the day of, but prior to, his injury was in
interstate commerce, the uncontroverted evidence demon-
strated that his employment terminated prior to his in-
jury, and, hence, the Federal Employers’ Liability Act
had no application, by reason of the following uncontro-
verted facts shown by the evidence:

(1) After decedent ceased work at Muncie, he traveled
42 miles to Tipton (R. p. 35, 1. 8) by private automobile
of his own selection and procurement, before boarding
the motor car to go to his home at Sharpsville (R. p. 61,
1 .9, to p. 62, 1. 8; p. 35, 1. 8).

(2) The trip from Tipton to Sharpsville, during which
decedent was injured, occurred several hours after dece-
dent ceased work at Muncie (RB. p. 60, 1. 25 to 1. 29; p. 49,
1. 24 to 1. 28).

(3) Decedent could, and in accordance with his duty
and prior instructions from his superior, should have
stayed at the scene of his employment at Muncie. (R. p.
21, 1. 25 to 1. 42; p. 22, 1. 11 to 1. 21; p. 22, 1. 36 to 1. 41; p.
35, 1. 20, to p. 39, 1. 27; p. 38, 1. 1, to p. 39, 1. 6; p. 44, 1. 23
to 1. 31.)

(4) Decedent left Muncie to go to his home at Sharps-
ville for his own private purpose and not on any duty or
business for respondent. (R. p. 61, 1. 9, to p. 62, 1. 22.)

(5) Decedent’s trip from Tipton to Sharpsville was in-
trastate on an intrastate line of railroad. (R. p. 23, 1. 23
to 1. 30.)

'

ORIEN ETI EL: HUE ELSE AIRES ATEN 8 Te MCE IORI TRY IE NEI SCRE RTY ;

11

(6) Decedent, at the time of his injury, was not on the
premises where his day’s work had been done, nor on any
premises of respondent closely adjacent thereto. (R. p. 35,
1. 7 to 1. 9.)

(7) Respondent had not provided any motor car to de-
cedent for his use in going from Tipton to his home at
Sharpsville, but, at most, had merely not objected to such
use. (R. p. 27, 1. 6 to 1. 20; p. 45, 1. 4 to 1. 10.)

(8) Decedent was not using the motor car which he was
permitted to use in going to his home, but was using an
entirely different motor car without respondent’s consent.
(R. p. 39, 1. 24 to 1. 27; p. 48, 1. 21 to 1. 23; p. 49, 1. 20 to
l. 23; p. 67, 1. 1 to 1. 2.)

(9) Decedent lived at Sharpsville, six miles from his
normal terminal of employment at Tipton, from his own
choice and not by any request or compulsion by respond-
ent. (R. p. 20, 1. 6 to 1. 8; p. 43, 1. 30 to 1. 33; p. 44, 1. 31
to 1. 37.)

Court Statement of Facts
A statement of the facts in evidence is set out in the
trial court’s memorandum (R. 99-100) and a similar stafe-
ment is set out in the opinion of the Circuit Court of Ap-
peals (R. 121-122), as follows:

“‘Defendant operated an interstate line of rail-
road through Muncie and Tipton, Indiana. It also
operated an intrastate line between Michigan City,
Indiana, and Indianapolis, Indiana, which crossed
the interstate line at Tipton and passed through
Sharpsville, Indiana. Decedent worked during a
part of the day of his injury at Muncie, Indiana,
on the interstate line but his injury occurred upon
the intrastate line.

‘‘Decedent was a general foreman for defendant
with supervision over track construction and main-

12

tenance, including operation of work trains. His
headquarters were at Tipton but he lived at Sharps-
ville, six miles distant from Tipton. He had been
furnished a one-man motor car by defendant for use
in traveling over his work territory, which he also
used, without objection on the part of defendant, in
going between his home at Sharpsville and his head-
quarters at Tipton. Several days prior to ,and in-
cluding November 5, 1948, the day of his injury, he
had been assigned to and engaged in the operation
of a work train and three gangs of men at Muncie
on a job, the completion of which required several
more days. Decedent had instructions from his su-
perior to stay with the work train. His duty re-
quired his presence so as to get the train out in
the morning and put it away at night. Decedent
spent the two nights previous to the day of his in-
jury at his home in Sharpsville. This was not
known to the defendant, although the decedent had
previously under similar circumstances and with de-
fendant’s knowledge returned to his home for the
night, apparently with no objection by the de-
fendant. There is no evidence as to what form of
conveyance decedent used going to Muncie on the
day of his injury; however, it is shown that the
gang working with the train at Muncie, over which
decedent had supervision, was conveyed by defend-
ant’s truck from Tipton to Muncie . Also under de-
cedent’s supervision at Muncie was the Cammack
gang, which arrived at Muncie previous to the Tip-
ton gang. Decedent had been assigned to Muncie for
the day following his injury, and it was his duty to
be on hand prior to the arrival of the gang from
Tipton. Decedent could have remained at Muncie
at the expense of the defendant.

On November 5, 1948, the work at Muncie was
suspended before the usual time on account of the
weather. After the gang had quit work, decedent,

13

without notifying his superior, left Muncie about
3:10 p. m., bound for his home in Sharpsville, so
that he might see a basketball game in which his
son was to participate. He rode from Muncie to Tip-
ton, a distance of forty-two miles, by automobile
owned and operated by a fellow employee. It was
stipulated ‘that defendant did not furnish to plain-
tiff’s decedent said automobile in which he rode
from Muncie, Indiana, to Tipton, Indiana, and that
said automobile was not owned, or operated, by de-
fendant.’ At Tipton, decedent found that the motor
car commonly used by him had been taken by one
Collins, also an employee of the defendant. De-
cedent, some two hours after he had left Muncie,
took another motor car, which had not previously
been used by him, and started from Tipton for
Sharpsville. On this journey, the motor car driven
by the decedent and the one driven by Collins col-
lided, from which collision the decedent sustained
injuries resulting in his death.’’

Decisions on Employment Termination

Respondent desires now to discuss authorities pertinent
to the foregoing facts.

The question as to when an employee is in interstate
commerce when he is ‘‘going home from work’’ in such
commerce is discussed, with authorities, in Roberts’ ‘‘Fed-
eral Liability of Carriers’’ second edition, Volume II, sec-
tion 739, page 1391. On page 1393 of the text the rule is
stated as follows:

‘*In general, when an employee is summoned for
duty in connection with interstate transportation,
he is within the protection of the federal act as
soon as he comes upon the premises of the railway
company; and, he is also under the same protec-
tion while, after leaving his duties, he is passing
out of the premises of his employer, provided it is

14

done within a reasonable time and along the usual
route.’’ (Our Italies.)

In reference to the above quoted language we would
eall the attention of the court to the fact that decedent
was returning home several hours after his actual work
at Muncie, Indiana, had terminated, and the route which
he used included a trip by third party automobile over a
distance of 42 miles.

The case of Glover v. Union, etc. R. Co. (D. C. Idaho
1938) 21 F. Suppl. 618, holds that the employee in that
case was engaged in interstate commerce, but bases the
decision on the ground that he was riding in a vehicle
engaged in interstate commerce provided by his employer
and that this was done pursuant to the employer’s direc-
tion. The reasoning upon which the court arrives at its
decision is in support of the contention of respondent in
this case.

In the case of Krysiak vs. Pennsylvania R. Co. (1921),
270 Fed. 758, 759, 760, the court, in deciding against the
employee in a case similar to ours, uses the following
language:

‘“We are particular to note just here that we are
not passing on a case where an employee, leaving
employment in interstate commerce, selects one of
several more or less dangerous means of exit from
his place of employment because his employer had
provided him no safe means; but we are passing
on a case where the employer had provided a safe
way out and the employe, ignoring it, selected a
dangerous way. At that moment, we think, Krysiak
ended his employment and lost the status of an em-
ploye in interstate commerce. Later, when he was
killed, he was not engaged in his employer’s work,
or in an incident to it, but was engaged in his own
private concerns.’’

15

We submit that in the instant case, in accordance with
the facts, decedent could and should have stayed at Mun-
cie, but of his own choice he went home for his own pur-
poses, and included in the trip home the dangerous trip on
the motor car.

In the case of Young vs. New York, etc. R. Co., 74 Fed-
(2nd) 251, 252, 253, the employee, after completing his
day’s work, rode on a train free as an employee to tlie
place where he lived and then boarded the locomotive on
which he was injured, to a place where he had left his
street clothes, which he wanted. The court in holding that
he was not then engaged in interstate commerce, uses the
following language:

‘‘Conversely, if there are alternative ways of
reaching the job, one across the employer’s prop-
erty and another elsewhere, the employer’s liabil-
ity will depend upon whether it is ‘reasonably nec-
essary’ for the workman to use the first, or wheth-
er he does so merely for his ‘convenience’.’’

Certainly in the instant case decedent was using the
motor car to go home on his own purposes and for his
own convenience.

On page 253 of decision, the court says:

‘*Except that he wanted his street clothes left at
E Cedar Hill, into which to change, he could have
\4 gone home by trolley as the engineer did. Certain-
3 ly the defendant had no conceivable interest in this;
he was as good a fireman whether he went upon
a the streets of Springfield and New Haven in over-
i alls or in street clothes.’’ (Our Italics.)

Certainly in the instant case the respondent had no con-
ceivable interest in the trip of decedent to his home to
witness a basketball game.

| SPS LM SLL LEE RT NE SELL IE OEE LI LER CANES EY BEE

16

In the case of Sassaman vs. Pennsylvania R. Co., 144
Fed. (2nd) 950, 952-954, a train dispatcher rode on his
employer’s intrastate train while going home after work
and was injured while alighting from the train on a sta-
tion platform nine miles from his normal place of work.
i The court held he was not on the employer’s premises so
: as to bring him within the Federal Employers’ Liability
5 Act.

2 ‘‘He can therefore maintain a right of action un-
; der the Act, as it existed at the time of the occur-
j rence in question, only if the defendant was then
i engaged as a common carrier in interstate com-
merce and he was employed by the carrier in such
commerce.”’

Certainly decedent, in the instant case, was riding on
; an intrastate conveyance between Tipton and Sharpsville.
: On page 952 of decision, the court says:

‘We believe it will be found in the cases just
cited as well as generally that, in order for an in-
jured employee to be able to claim a right of action
under the Federal Employer’s Liability Act, it
must be made to appear that his injuries were sus-
tained either upon the premises where he normally
performed the duties of his employment or upon
premises so closely adjacent thereto as to be a part
of the working premises in the sense that the em-
ployee was required to traverse them in going to
or upon leaving his work. In other words, the em-
ployee’s presence upon the premises where he re-
ceives his injuries must have been a necessary in-
cident to the discharge of the duties of his employ-
ment.’’

Certainly decedent, in the instant case, was not on the
premises where he had been working during the day, nor
on any premises closely adjacent thereto, and was not,

—_

17

under the facts of this case, required to traverse these
premises after his day’s work was done. His doing so
was not incident to the discharge of his duties, since they
were at Muncie and he should have stayed at Muncie.

On page 953 of decision, the court says:

‘In short, the condition which makes possible a
claim for injuries suffered as in the course of em-
ployment but which are actually received on prem-
ises away from the employee’s place of employment
is the fact that the employee must, of necessity,
traverse such other premises in order to reach or
depart from the place of the discharge of his duties.
In such circumstances, he is upon the adjacent or
other premises, as a requisite of his employment,
either with the knowledge and consent or the ap-
proval of his employer, at the least, legally implied
from the knowable situation.

‘‘But, that is not this case. When the plaintiff
descended from his place of employment to the de-
fendant’s Jersey City Station he was free to travel
home or go elsewhere, as suited his desires, by
whatever means of transportation he chose. He was
not required to travel on the defendant’s train.
Much less, was he required to travel upon a par-
ticular train. There was absent, therefore, the em-
ployer compulsion as to the mode of travel to and
from work which serves to attach or continue the
employee relationship, away from the place of em-
ployment, and makes an interstate employee’s right
of recovery for injury remediable under the Fed-
eral Employer’s Liability Act.’’

Certainly in the instant case there was no compulsion
on the part of respondent that decedent return home, or
that he do so by the use of an automobile of a third party
and a motor car appropriated by him to replace the one
ordinarily used on his work and not provided for him for

18
going home but only used by him without objection.

On page 953 of decision, the court says:

‘*We accordingly concede that the plaintiff was
not acting within the scope of his employment at
the time he received his injuries and that, conse-
quently, he was not employed in interstate com-
merce at that time. It, therefore, follows that he
does not have a right of action under the Federal
Employers’ Liability Act.’’

Certainly in the instant case decedent was not within
the scope of his employment when he was going home for
his own purposes contrary to instructions, and in neglect
of the duties which he had to perform at Muncie.

We submit that decedent’s employment in interstate
commerce terminated when he boarded the private auto-
mobile at Muncie to go home for his own purposes in
which respondent had no interest, and if his day’s work
was then terminated, it certainly could not be revived
merely by the fact that he was availing himself of a per-
missive use of a motor car on respondent’s premises.

We further submit that it can not reasonably be said
that decedent was employed in interstate commerce on the
trip which caused his death when he was going home for
his own purposes and neglecting the duties which he had
to perform and violating instructions of his superior.

Court Statement of Question Involved

In its decision of the instant case, the Circuit Court of
Appeals correctly stated the question for decision as fol-
lows (R. 121):

‘‘The sole contested issue here is whether dece-
dent at the time of the accident which resulted in
his death was engaged in interstate commerce, and
this issue depends upon whether at that time the

s_—
19

decedent was engaged in his employment with the
defendant. Obviously, the court’s jurisdiction is de-
pendent upon the solution of this issue. In this con-
nection, plaintiff contends that the issue was one of
fact and was settled by the jury’s verdict. The court
below, however, in dismissing the action held as a
matter of law that the decedent at the time of the
accident was not engaged in his employment so as
to be entitled to the protection of the Act. All the
testimony (aside from certain stipulated facts) rel-
ative to this issue was offered by the plaintiff.
There is no dispute as to any material fact, and we
agree with the court below that the question for
decision is one of law.’’

Court Decision of Question
The Cireuit Court of Appeals correctly arrived at the
following conclusions: (R. 125, 126, 127.)

‘‘Applying the principles of these cases and oth-
ers which could be cited, it is hardly open to ques-
tion but that decedent’s employment relationship
ceased at the time he departed from Muncie in a
privately owned automobile. When his work was
completed on that day, he had the option of remain-
ing in Muncie at the defendant’s expense or mak-
ing the trip to Sharpsville for the night. He chose
the latter course. Certainly it cannot be thought
that this action of the decedent was for the purpose
of discharging any duty incident to or in connec-
tion with his employment. When he left Muncie, he
was engaged solely in a personal activity unrelated
to his duties as an employee of the defendant.

‘Even so, we still have the question as to the de-
cedent’s status after he arrived at Tipton and com-
menced the journey from there to his home. during
which the unfortunate accident took place. It is
argued by the plaintiff that even though there was
a deviation from the scope of his employment dur-

20

ing the trip from Muncie to Tipton, it was only
temporary, and that his status as an employee was
reestablished at Tipton.’’

‘‘We think the question must be answered ad-
versely to plaintiff’s contention. Certainly the de-
cedent’s ill-fated trip from Tipton to his home in
Sharpsville was for his own personal purpose and
convenience the same as that from Muncie to Tip-
ton. It was only a continuation of the same engage-
ment, without any alteration of motive or purpose.
The fact that he was permitted to utilize defend-
ant’s motor car as he had done in the past and that
it was operated upon defendant’s tracks has no
tendency to re-establish the relationship which the
decedent by his voluntary act had previously sev-
ered.’’

Affirmative Establishment of Jurisdiction

Proposition E
Jurisdictional facts (in this case employment in inter-
state commerce at the time of injury) must be affirma-
tively established.

Royalty etc. Corp. v. City of Los Angeles (CCA, 9th
Cir, 1938) 98 Fed (2) 551, 553;

United States v. Wilson (CCA 10th Cir, 1935), 78 Fed
(2) 465, 467;

McNutt v. General etc. Corp. (1936) 298 U. S. 178, 189,
56 S Ct 780, 80 Law Ed. 1135, 1141;

Thomson v. Gaskill (1942) 315 U. S. 442, 446, 62
S Ct 673, 86 Law Ed. 951, 955;

Selite Corp. v. Decalite Co. (CCA 9th Cir 1938) 96
Fed (2) 242, 249;

Electro ete. Co. v. Strong (CCA 9th Cir 1936) 84
Fed (2) 766, 767;

Hill v. Walker (CCA 8th Cir 1909) 167 Fed 241,
243 et seq.

ERIS PORE ice Raed ca cs Be a ks er

—.

21

In the case of McNutt v. General, etc. Corp. (1936) 298
U. S. 178, 189, 56 S Ct 780, 80 Law Ed. 1135, 1141, the
court, on the question of establishing jurisdiction, uses
the following language:

“In the nature of things, the authorized inquiry
is primarily directed to the one who claims that the
power of the court should be exerted in his behalf.
As he is seeking relief subject to this supervision,
it follows that he must carry throughout the liti-
gation the burden of showing that he is properly
in court. The authority which the statute vests in
the court to enforce the limitations of its jurisdic-
tion precludes the idea that jurisdiction may be
maintained by mere averment or that the party
asserting jurisdiction may be relieved of his burden
by any formal procedure. If his allegations of jur-
isdictional facts are challenged by his adversary
in any appropriate manner, he must support them
by competent proof. And where they are not so
challenged the court may still insist that the juris-
dictional facts be established or the case be dis-
missed, and for that purpose the court may demand
that the party alleging jurisdiction justify his alle-
gations by a preponderance of evidence. We think
that only in this way may the practice of the Dis-
trict Courts be harmonized with the true intent of
the statute which clothes them with adequate au-
thority and imposes upon them a correlative duty.’’

In the case of Royalty, etc. Corp. v. City of Los Angeles
(CCA, 9th Cir, 1938) 98 Fed. 2d, 551, 993, the court says:

‘‘It is also settled by the recent decision of the
Supreme Court in the case of MeNutt v. General
Motors Acceptance Corporation, 1936, 298 U. §.
178, 56 S Ct 780, 80 L. Ed. 1135, that under sec-
tion 37 of the Judicial Code, 28 U. S. QC. A., pg. 80,
a plaintiff must plead the essential jurisdictional
facts and must carry throughout the litigation the

Rate 2 feta NM I IE mt
—— SIP LAS ET PTT CIT EI

22

burden of showing that he is properly in court;
that the District Court is vested with the authority
to inquire at any time whether these conditions
have been met; and that the authority so vested in
the court by the statute ‘precludes the idea that
jurisdiction may be maintained by mere averment
or that the party asserting jurisdiction may be re-
lieved of his burden by any formal procedure’.’’

In the case of United States v. Wilson (CCA, 10th Cir,
1935) 78 Fed. 2d 465, 467, the court says:
‘*Where jurisdiction of the trial court depends

upon the existence of a fact, that fact must be
proven if put in issue by the pleadings.’’

Employment Relation Question of Law
Proposition F
The question as to employment in interstate commerce
at the time of injury was a question of law for the court
for the reason: (1) that the question involved jurisdic-
tion and (2) that the evidence bearing on the question
was uncontroverted. j
Texas etc. R. C. v. Gulf etc. R. C. (1926) 270 U. S.
266, 274, 46 S Ct 263, 70 Law Ed. 578, 582;
Shanks v. Delaware etc. R. C. (1916) 239 U. S. 556,
559, 36 S Ct 188, 60 Law Ed. 437, 438;
New York etc. R. Co. v. Powell (1943) 221 Ind. 321,
331, 47 NE (2) 615, 619;
Brady v. Southern R. Co. (1943) 320 U. S. 476, 479,
64 S Ct 232, 88 L. Ed. 239, 243;
Middleton v. Southern ete. Co. (CCA 5th Cir 1932)
61 Fed (2) 929, 930;
A. B. Small Co. v. Lamborn & Co. (1925) 267 U. S.
248, 45 S Ct 295, 69 L. Ed. 597, 600.

In the case of Texas, etc. R. Co. v. Gulf, etc. R. Co.
(1926), 270 U. S. 266, 274, 46 S Ct 263, 70 Law Ed. 578,
582, the court says:

EELS IE PEN LENIN PRE DE EME EINE I EEE MERA EE NESS Ge 8 IY It IE. ENO REE IID RST 2 TS

23

“‘If the facts are agreed, the question is one of
law. If they are not agreed, the court must find
them. In the case at bar, the District Court, hav-
ing jurisdicton generally of the parties and of the
subject matter, was called upon to determine wheth-
er an allegation in the bill, essential to the cause
of action, was established. This, the court clearly
had power to do. Moreover, even if the question
presented were, as contended, properly one of jur-
isdiction, the objection urged could not prevail.
Every court of general jurisdiction has power to
determine whether the conditions essential to its
exercise exist.’’

In the case of Shanks v. Delaware, etc. R. Co. ( 1916)
239 U. S. 556, 559, 36 S Ct 188, 60 Law Ed. 437, 438, the
Supreme Court of the United States considered the evi-
dence in the record on the question of interstate com-
merce employment and upon that evidence applied the test
and held as a matter of law that interstate commerce em-
ployment did not appear.

On the question of the function of the trial court in rul-
ing upon a motion for a directed verdict, which requires
a determination of the sufficiency of the evidence as a
matter of law, the Indiana rule and the Federal rule are
essentially the same.

In stating that rule the Supreme Court of Indiana, in
the case of New York, ete. R. Co. v. Powell (1943), 221
Ind. 321, 331, 47 N. E. (2nd) 615, 619, says:

“While this judicial function is generally in-
voked in passing upon the sufficiency of pleadings,
it often arises again upon the evidence, and where
the evidence most favorable to the plaintiff is in-
sufficient to establish negligence in law, the court
should dispose of the matter and not permit the
question to go to the jury.”’

SEO LR ELM ET LYE OD ET LIED I OTD RTL IE FRI EE wranaee

Ree

EPR NE NOE IE YA tier AP Wi ERTER ef

24

On the same question the Supreme Court of the United
States has very clearly laid down the proper test. In the
ease of A. B. Small Co. v. Lamborn & Co. (1925) 267 U.
S. 248, 254, 45 S Ct 295, 69 L. Ed. 597, 600, the court says:

‘‘The rule for testing the direction of a verdict,
as often has been held, is that where the evidence
is undisputed, or of such conclusive character that
if a verdict were returned for one party, whether
plaintiff or defendant, it would have to be set aside
in the exercise of a sound judicial discretion, a ver-
dict may and should be directed for the other party.
The view that a scintilla or modicum of conflicting
evidence, irrespective of the character and measure
of that to which it is opposed, necessarily requires
a submission to the jury, has met with express dis-
approval in this jurisdiction, as in many others.’’
(Our Italics.)

It will be noted that in the above rule the first alter-
native ease stated is ‘‘where the evidence is undisputed.”’
It is our understanding that evidence is not disputed un-
less one witness contradicts another, or contradicts writ-
ten evidence. The mere fact that a question arises as to
how the law should be applied to the facts is not a dis-
pute in the evidence. We submit that, in the instant case,
there was no dispute on any matter relating to interstate
commerce between any of the witnesses, and no contra-
diction of one witness by another. Therefore, the only
necessity is an application of the law to the proven facts,
and this becomes a duty of the court and cannot be prop-
erly submitted to the jury.

Questions Properly Raised in Trial Court

Respondent’s assertions that decedent’s employment had
terminated and that (1) the trial court had no jurisdiction

= ee
Mot ane

25

under the Federal Act and (2) that, under the uncontro-
verted evidence, petitioner was not entitled to recover as
a matter of law, were properly and repeatedly raised by
denial in the answer (R. 6), by motion to dismiss (R. 9)
and motion for directed verdict (R. 10) filed at the close
of petitioner’s evidence, and repeated at the close of all
the evidence (R. 11, 12) by respondent’s tendered instruc-
tion 1 (R. 95), by respondent’s objection to the court’s
charge to the jury (R. 91, 1. 42 to 93, 1. 4), and by respond-
ent’s motions after verdict (R. 97, 98).

Proposition G

The question of the trial court’s jurisdiction of the sub-
ject matter may not be waived and may be raised at any
time by the parties, or by the court, and is properly raised
by a motion to dismiss.

Federal Rules of Civil Procedure ,Rule 12(h) supersed-
ing 18 Stat 472 (1875) 24 Stat 555 (1887) 25 Stat 436
(1888) 36 Stat 1098 (1911) Jurisdictional Code, sec.
37, 28 USCA (1927 ed) sec. 80;

Mitchell v. Maurer (1934) 239 U. S. 237, 244, 55 Sct
162, 79 L. Ed. 338, 343;

Ex parte McCardle 7 Wall, 506 (1869) 19 L. Ed. 264,
265;

Minnesota v. Hitchcock (1902) 185 U. S. 373, 382,
22 S Ct 650, 46 L. Ed. 954, 961;

Bell v. Hood (CCA Cal. 1945) 150 Fed (2) 96, 98.

Proposition H

Respondent’s motions filed after verdict (R. pp. 97, 98)
asking that the verdict be set aside and appropriate judg-
ment rendered, constituted proper procedure.

Federal Rules of Civil Procedure, Rule 50.

ty
——_— — -_ a a owe AUTRE rah Ta Soa IRR iL ro

26

No Attempt to Amend Made
Proposition I

Aside from the question of jurisdiction, plaintiff failed
to prove employment in interstate commerce and, hence,
failed to establish a cause of action under the Federal
Employers’ Liability Act. She did not seek to amend her
complaint to conform to the evidence, if any, to support
a cause of action under the Indiana wrongful death
statute. The record shows no request of petitioner to in-
struct the jury under the state law. Hence, the trial court
should have directed a verdict for respondent.

Shafor v. Illinois etc. R. Co. (1916) 172 Ky. 337, 189
SW 237.

No Recovery Under State Law

Proposition J
Aside from the question of jurisdiction and aside from
the question of variance and failure to amend, if decedent
was not employed in interstate commerce at the time of
injury, as respondent here contends.

(1) the Federal Employers’ Liability Act would not ap-
ply and the cause of action (between two strangers—not
master and servant) was governed by the Indiana wrong-
ful death statute (limit of recovery $10,000) and common
law negligence.

Indiana Acts 1937, Ch. 292, Sec. 3, p. 1341, B. R. S.
(1933) Sec. 2-404;

35 Stat 65 (1908), 53 Stat 1404 (1939), 45 USCA, Sec.
51 (Federal Employers’ Liability Act).

(2) contributory negligence was shown by the uncontro-
verted evidence as a matter of law and was an absolute
bar to recovery under the Indiana wrongful death statute.

RL ISL PIP Lh LOGE IE VOLES NNN AOE IESE Pf TRE ES AI TE RE IE BITES SB PREMIERS IMS —

27

Chicago etc. R. Co. v. Hedges, admr. (1888) 118 Ind.
5, 11, 20 NE 530;

New York etc. R. Co. v. Miller, admr. (1936) 101 Ind.
App. 498, 502, 200 NE 78;

Wabash R. Co. v. Zayac (CCA 7th Cir 1929) 30 Fed.
(2) 764, 766.

(3) and respondent’s motion for directed verdict filed
at the close of all the evidence should have been sustained.
Brady v. Southern R. Co. (1943) 320 U. S. 476, 479,
64 S Ct 232, 88 L. Ed. 239, 243;;
Scocozza v. Erie R. Co. (CCA 2nd Cir 1949) 171 Fed.
(2) 745, 746;
New York etc. R. Co. v. Powell (1943) 221 Ind. 321,
331, 47 NE (2) 615, 619;
Delaware ete. R. Co. v. Koske (1929) 279 U. S. 7,
12, 49 S Ct 202, 73 L. Ed. 578, 582;
Hamble v. Brandt (1935) 98 Ind. App. 399, 404, 189
NE 533, 535;
Gulf ete. R. Co. v. Wells (1928) 275 U.S. 455, 459,
48 S Ct 151, 72 L. Ed. 370, 372.

Answering Petitioner’s Contentions

Respondent now desires to specifically refer to petition-
er’s contentions in this proceeding, with references at the
beginning of various paragraphs to the pages of petition-
er’s petition and brief to which reference is made, namely,
pages 4 to 6 and 11 to 23.

(In this portion of our brief, we are assuming that this
court would prefer that we omit the citations which ap-
pear in petitioner’s petition and brief following the cases,
and on the pages, to which we make specific reference.)

(P. 4) The Erie Railroad Company case cited states the
rule with regard to ‘‘going home from work.”’ However,
according to the facts of that case, the employee had never

28

left the employer’s premises and was walking on those
premises when injured.

The Cardillo, Voehl and Cudahy cases are workmen’s
compensation cases and turned largely on the effect of the
finding of the trial court. Moreover, in each of those cases,
transportation was furnished from the place of work, with-
out interruption of travel in a private automobile for a
period of several hours and for a distance of 42 miles off
the premises of the employer, as in this case, and without
the additional distinguishing feature, established in this
case, that decedent should have stayed at Muncie.

There is, therefore, no conflict between the decisions
above referred to and the decision of the Court of Ap-
peals in the instant case, since the established rules were
applied to different facts.

(P. 5, 6) In the Maryland Casualty Company case an
automobile was owned by a corporate employer and kept
at the home of the secretary of the corporation. The auto-
mobile was used for company business whenever needed
and sometimes, by permission, by the wife of the secre-
tary. Part of the employee’s duties consisted of washing
and greasing the automobile. The employer paid all ex-
pense of maintenance and operation of the automobile. On
the occasion in question the employee was directed by the
secretary to go to his home and wash the automobile. By
choice the employee used busses for transportation to the
secretary’s home and transferred from one bus to another.
On the oceasion in question, at the point of transfer, the
employee transacted some business of his own. He re-
turned to the transfer bus and was injured in alighting
therefrom. The court held (1) that the employee was a
general utility man on duty when looking after company
property pursuant to orders and (2) that, although he

MME I NEM LAN OQ RY RY RAMEN LEI EE HESS a RC

29

deviated from the trip home for his own purpose, he was
going back to work when he was injured. The distinction
from the instant case is that when decedent boarded the
motor car at Tipton he was not going back to work, but
was resuming his trip to see a basketball game.

The Lytle case involves workmen’s compensation and
the effect of the finding of the trial court. In this case
the employee was going back to work from a point near
the place of work in a truck owned and furnished by his
employer.

There is, therefore, no conflict between the decisions
above referred to and the decision of the Court of Appeals
in the instant case, since the cited cases involved ‘‘going
back to work,’’ and not proceeding on in the sole purpose
of the employe in which the employer had no interest.

The Bailey, Tiller, Tennant, Lavender and Wilkerson
cases, cited in the last paragraph on page 5, and again on
pages 11 and 13, all involve the issue of negligence, and in
each of those cases the jury was permitted to draw infer-
ences because inferences were possible under the facts of
the particular cases. In the instant case there is no dis-
pute in the essential facts, nor any difference in the in-
ferences which might be drawn. As bearing upon the
question of submission of cases to a jury, we would refer
the court to Proposition F, page 22, supra.

(P. 11) The Bailey, Tiller, Tennant, Lavender and
Wilkerson cases here cited have been referred tc in the
last preceding paragraph, supra. The Cardillo, Voehl and

Cudahy cases here cited have been referred to (p.
supra).

,

(P. 13) We have already distinguished the first five
cases cited on page 13 (p. 29, supra) and have heretofore

pe . ”
High bon eee RE NT ee
Parr FEN

etic ae ey Ndi isin

APSE ath

30

referred to the Erie Railroad Company case ( p. 27, supra).

In the Zachary case the employee had not left the prem-
ises of the employer and it was held that the brief visit
to his boarding house was not inconsistent with his duties.

In the Morris case the employee was killed on the em-
ployer’s premises while going to work. The case turned
on the employee’s choice of route, but, at any rate, he was
going back to work on the employer’s premises and not
traveling a distance of 42 miles for a period of two hours
off the employer’s premises solely for purposes of his
own, as was established in the instant case.

(P. 14) In the Coleman and Louisville cases the em-
ployee was walking from work on the employer’s prem-
ises, on the route customarily used, to his lodging, which
was furnished by the employer.

In the Rogers case the employee left the locomotive and
went across the street to buy a personal item and was re-

‘urning to work on the employer’s premises when he was
killed.

We submit that the facts of the three cases last above
referred to distinguish them from the instant case.

In the Atlantic, etc. Company case the employee was
boarding a shuttle train furnished by the employer for
the purpose of carrying employees to work, and there was
no intermediate cessation of the trip by private automo-
bile, as in the instant case.

In the Ramsay case the employee was traveling by hand-
car furnished by his employer and in the control of a fore-
man designated by the employer to direct the movements
of the employee and, again, there was no intermediate use
of a private automobile.

_

31

In the Southern Railroad Company case the facts were
basically identical with the facts of the Ramsay case.

In the Covington case the facts are very similar to the
last three cases above referred to.

In the San Pedro case the employee was riding on a hand
car furnished by the employer at the direction of his fore-
man (1) going to his place of work (and not for his own
specific purpose of seeing a basketball game) and (2) tak-
ing the hand car to its place of destination.

In the Horton case the employee was traveling on a hand
ear furnished by the employer and traveling on his em-
ployer’s premises from his home to his place of work.

In none of the cases cited by petitioner on page 14 will
the court find the distinguishing features present in the
instant case, namely, the long trip in the private automo-
bile off the premises of the employer, the fact that the
employee should have stayed at Muncie, and the further
fact that when decedent went back to the premises of the
employer and resumed the trip on the motor car, he was
still proceeding on his own specific purpose and was not
going back to work.

P. 15, 16) Here petitioner discusses some of the cases
theretofore cited (p. 4, 5, 13, 14) and hereinabove referred
to (pp. , supra):

(P. 17) In the Bountiful Brick Company case, here cited,
the employee was going to work over the premises of an-
other ‘‘in such proximity and relationship as to be in prac-
tical effect a part of the employer’s premises.’’ In the in-
stant case the employee was not going to work and was
injured at a place far distant from Muncie, his then place
of employment. This case is quoted and discussed in the
opinion of the Circuit Court of Appeals (R. 123).

Rien cies wot, ae ee EPSTEIN IRE PLY OMY PER PAT ES LIANE RM =
apse PIII 52 1 tte ee NH ROR CN A PR ERS TEE SIN ANG ee Pe
z ARS sy 3 We

32

The Cudahy case has already been discussed (p. 28,
supra).

(P. 18) In the Kellog case, here cited, the employer was
transporting employees to work and the employee was
injured enroute by negligence of the employer. We submit
the facts of this case are not pertinent.

The Cardillo case has already been discussed (p. 28,
supra).

Petitioner cites the Carillo, Heaps and W. C. Sharp
cases on the proposition that a substitute conveyance does
not remove the case from the normal rule, but in each of
these cited cases the difference in the facts removes them
as authority.

(P. 19, 20) The Rogers, Maryland and Lytle cases, here
cited, have already been discussed (pp. 28-30, supra).

Conclusion

In conclusion respondent respectfully submits that there
is no occasion or right of certiorari shown in this case,
either on the ground of conflict in the decided cases or a
new question of law.

This court has laid down general rules as to the status
of an employee when going to and from work, but obvious-
ly each case will normally stand on its own merits.

Respondent submits that petitioner’s decedent was not
within the rule governing going home from work, because

(1) his duty required him to remain at Muncie, where
he could have stayed at the expense of his employer;

(2) several hours elapsed from the termination of his
work until his resumption of his trip home by motor car;

(3) the employee, after terminating his work, traveled

33

42 miles by private automobile of his own procurement,
without any consent of his employer, before he resumed
his trip home by motor car, and

(4) the employee was engaged entirely in his own per-
sonal pursuit in which the employer had no interest, name-
ly, going to a basketball game.

Respondent further submits that petitioner’s decedent
was not within the rule regarding going to work, because
he was not going to work, but was going to Sharpsville
solely for his own purposes.

Respondent is unable to draw conclusions with any more
force and clarity than the Circuit Court of Appeals in its

decision of this case, to which we would respectfully refer
this court (R. 125-127).

Wherefore, respondent prays that certiorari be denied.

Russet P. Harker
Frankfort, Indiana
Attorney for Respondent

W. F. West

Cleveland, Ohio
CrumpacKER, May, Beamer, Levy & SearEer

South Bend, Indiana
Harker & Irwin

Frankfort, Indiana
Of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0875%3A2. Public record. Not legal advice.