Petition for Writ of Certiorari — Krouse v. Lowden, et al., Trustees

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CITATIONS

Cases:

Chicago, Burlington & Quincy Railroad v. Harrington, 241 U. S. 177 7,8

Chicago & Eastern Illinois Railroad Co. v. Commission, 284 U. S. 296 8

Chicago & Northwestern Railway Co. v. Bolle, 284 U. 8. 74......... 8

Commissioners v. Lucas, 93 U. 8. 108... . 2... 6. occa cece ccee 2

Illinois Central Railroad Company v. Behrens, 233 U. S. 473........ 6

Minneapolis & St. Louis Raiiroad Company vy. Winters, 242 U.S. 353.8

<covhampaachtg’ actos sacorcige ice Be. "Pe > SPS ential reine ae anaes nel Rt a 2

New York Central Railroad Co. v. Winfield, 244 U. S.147....... 12, 13, 14

New York, New Haven ¢ Hartford Railroad vy. Bezue, 284 U. 8.415 8

Shanks v. Delaware, Lackawanna & Western Railroad Company, 239

ES Bay nis sen sia pee Se eta ater a ee 7

White v. Lehigh Valley R. Co., 251 App. Div. 507................ 8

Statutes:

Federal Employers’ Liability Act, 35 Stat. 65, 53 Stat. 1404, 45

DE RM bet. aah eae he mente oe 2, 10

Kansas Workmen’s Compensation Act, Kans. Rev. Stat. (1935)

ee ME 55. 25 elses bch ph ae eors oie ad 3, 12

Miscellaneous:

NE uss an ene athe ONG Rivas ee A 11

October Term, 1931, 49 Harv. L. Rev. 226...................... 11

Supreme Court of the United States

OcToBER TERM, 1941

No.

JoHN O. Krovuss, Petitioner,

Vv.

Frank O. LowbEN, JAMEs E. GoRMAN AND JOSEPH B.

FLEMING, TRUSTEES OF THE EstTaTE OF THE CHICAGO,

Rock IsLaND AND Pacrric Ramway Company,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF KANSAS

The petitioner prays that writ of certiorari issue to

review the judgment of the Supreme Court of Kansas,

entered January 25, 1941 (R. 73), rehearing denied

March 14, 1941 (R. 97), reversing a judgment of the

District Court of Wyandotte County, State of Kansas,

in favor of the petitioner under the Kansas Workmen’s

Compensation Act, and remanding the case with direc-

tions to enter judgment for the respondents.

OPINIONS BELOW

The opinion of the Supreme Court of Kansas (R. 74)

is reported in 153 Kan. 181. The opinion of the Work-

men’s Compensation Commission (R. 31) is unre-

ported.

2

JURISDICTION

The judgment of the Supreme Court of Kansas was

entered January 25, 1941 (R. 73). A petition for re-

hearing was denied March 14, 1931 (R. 97). The juris-

diction of this Court is invoked under Section 237(b)

of the Judicial Code, as amended. The judgment of

the Supreme Court of Kansas is a final judgment. Com-

missioners Vv. Lucas, 93 U.S. 108, 113; Mower v. Fletcher,

114 U.S. 127.

QUESTIONS PPESENTED

At the time of his injury, the petitioner was tending

a switch engine which had been taken to the round-

house for inspection and which was withdrawn from

switching service for a period of six hours. Two ques-

tions are presented:

(1) Was the petitioner, at the time of the injury, en-

gaged in interstate commerce within the Federal Em-

ployers’ Liability Act, and for that reason not within

the jurisdiction of the Kansas Workmen’s Compensa-

tion Commission ?

(2) If the petitioner was engaged in interstate com-

merce, does the Federal Employers’ Liability Act pre-

clude the application of the Kansas Workmen’s Com-

pensation Act, and particularly in the absence of any

allegation or proof of fault on the part of the respond-

ents?

STATUTES INVOLVED

The relevant portions of Section 1 of the Federal

Employers’ Liability Act, 35 Stat. 65, 45 U. 8. C. A.

Sec. 51, are as follows:

‘‘Every common carrier by railroad while en-

gaging in commerce between any of the several

States or Territories * * * shall be liable in

3

damages to any person suffering injury while he

is employed by such carrier in such commerce

* * * for such injury or death resulting in

whole or in part from the negligence of any of

the officers, agents, or employees of such carrier

* * % 99

The relevant portions of the Kansas Workmen’s Com-

pensation Act, Sec. 44-505, Kansas Gen. Stat. (1935)

are as follows:

“That this act shall apply only to employment

in the course of the employers’ trade or business in

the following hazardous employments: Railway

* * * and all employments wherein a process

requiring the use of * * * inflammable ma-

terials is carried on, each of which employments

is hereby determined to be especially dangerous, in

which from the nature, conditions or means of

prosecution of the work therein, extraordinary

risk to the life and limb of the workmen engaged

therein is inherent, necessary, or substantially

unavoidable, and as to each of which employments

it is deemed necessary to establish a new system of

compensation for injuries to workmen. * * *”

STATEMENT

The petitioner was employed by the respondents as

an “engine herder’’. His duties consisted of tending

to switch engines. He kept the fire going, the steam

pressure up, the tanks and boilers supplied with water,

and the engine oiled and cleaned until it was taken over

by the operating crew (R.8). On the morning of April

17, 1938, between eight and nine o’elock, the petitioner

was seriously injured while performing these tasks on

switch engine No. 301 in the terminal yards of the re-

4

spondents in Armourdale, Wyandotte County, Kansas

(R. 8-9).

The switch engine had been in operation in the

Armourdale yards from 3 p. m. April 16 until 7 p. m.

April 17 (R. 24). It switched intrastate and inter-

state cars (R. 24). Having completed a sixteen-hour

stretch, it was taken to the roundhouse for about 11

hours for inspection, servicing and necessary repairs,

and then to an outbound engine track next to a water

crane (R. 9). It was customary to drive engines there

and place them in charge of herders to await the operat-

ing crews (R. 25). At 1p. m. the crew appeared and

put the idle switch engine to work once more. It made

up trains bound for both interstate and intrastate

points (R. 27, 28, 71).

The respondents’ trainmaster testified that the switch

engine had been assigned to this task before it was

removed from the roundhouse and placed on the out-

bound engine track. But there was nothing hard and

fast about this assignment. He admitted, upon re-cross

examination, that he did not know what particular cars

the westbound trains would have for switching (R. 28).

Thus it was not at all certain that the switch engine

would move interstate cars. He further admitted that

if something wrong had been discovered in switch en-

gine No. 301, another of its class would have been

assigned to this particular job (R. 69); that it was

off duty for six hours (R. 68); that although he had

instructed the roundhouse to furnish the engines in a

specified routine, he did not care whether switch engine

No. 301 or another engine kept the trains going west

(R. 69-70) ; and that if the men in the roundhouse sub-

stituted another for switch engine No. 301, they would

not notify the witness (R. 70).

ROIS ANE

— 5

The petitioner filed a claim for compensation which

came on for hearing before the Commissioner of Work-

men’s Compensation in Kansas City, Kansas, on March

21, 1939 (R. 31). The parties stipulated that the rela-

tion of employer and employee existed at the time of

the injury and that the petitioner had met with an acci-

dental injury arising out of, and in the course of, his

employment with the respondents (R. 31). On April

27, 1939, the Commissioner granted petitioner com-

pensation in the sum of $14.45 per week for a period

of 415 weeks and in addition, not to exceed $500.00 for

medical and hospital services (R. 37-38). An appeal

was taken to the District Court of Wyandotte County,

Kansas, which adopted the findings, conclusions and

the award of the Commissioner (R. 40). The Supreme

Court of Kansas reversed the judgment of the District

Court on January 25, 1941, on the ground that peti-

tioner’s employment at the time of injury brought him

within the Federal Act, and excluded him from the

Kansas Workmen’s Compensation Act; it remanded

with directions to enter a judgment for the respond-

ents (R. 73). The petitioner’s motion for rehearing

was denied on March 14, 1941 (R. 97). On March 19,

1941, the Supreme Court of Kansas stayed the issuance

of the mandate for a period of sixty (60) days (R. 97).

SPECIFICATION OF ERRORS TO BE URGED

The Supreme Court of Kansas erred:

1. In holding and deciding that at the time of his

injury the petitioner was engaged in interstate trans-

portation or work so closely related to it as to bring him

within the Federal Employers’ Liability Act.

2. In holding and deciding that the Kansas Work-

men’s Compensation Commission had no jurisdiction

over the petitioner’s claim for compensation,

6

3. In holding and deciding that the petitioner came

within the Federal Employers’ Liability Act because,

at the time of the injury, the switch engine had been

assigned to interstate and intrastate switching.

4. In failing to hold that, even though the petitioner

was engaged in interstate commerce at the time of

his injury, he properly came within the Kansas Work-

men’s Compensation Act.

5. In reversing the decision of the District Court of

Wyandotte County in favor of the petitioner.

REASONS FOR GRANTING THE WRIT

1. In holding that the petitioner was engaged in eim-

ployment subject to the Federal Employers’ Liability

Act, the Supreme Court of Kansas decided a Federal

question of substance in a way which is in direct con-

flict with Illinois Central Railroad Company v. Behrens,

233 U.S. 473. In that case the injured employee was a

member of the crew of a switch engine which was moy-

ing cars loaded with freight which was wholly intra-

state. Upon completion of that movement, it was to

have switched several other cars as a step in their

transportation within and without the state. This

Court held that the employee was not in interstate

commerce within the meaning of the Federal Employ-

ers’ Liability Act. The Court also held that the fact

that the switch engine and the employee were expected,

upon completion of their task, to engage in another

which would be a part of interstate commerce, was im-

material under the statute, since the true test is the

nature of the work being done at the time of the injury.

The Supreme Court of Kansas, notwithstanding this

decision, has held that an employee of a railroad who

was tending a switch engine which was stationary, and

EPS EERE LL. MUSE UAT OAR ESTAS ET GACH

7

was to remain so for three or four more hours, was en-

gaged in employment exclusively within the purview of

the Federal Employers’ Liability Act, because at the

time of the injury the trainmaster had assigned the

switch engine to the task of moving, at a later time,

cars destined for both interstate and intrastate points.

See also Chicago, Burlington & Quincy Railroad v. Har-

rington, 241 U.S. 177, 180.

2. The Supreme Court of the State of Kansas has

decided a Federal question of substance as to the appli-

cation of the Federal Employers’ Liability Act in a

way probably not in accord with the applicable deci-

sions of this Court. The lower court purported, in

accordance with Shanks vy. Delaware, Lackawanna &:

Western Railroad Company, 239 U. 8. 596, to employ

the test whether the petitioner at the time of the acci-

dent was performing work connected with the opera-

tion of an instrumentality of interstate commerce or 0)

closely related thereto as to be an essential part of

it. But the court misapplied this test. Beyond ques-

tion, the petitioner was not employed in interstate

transportation. To begin with, the switch engine was

an instrumentality of intrastate or interstate trans-

portation only when it switched intrastate or interstate

cars. At the time of the accident it was an instrumen-

tality of neither. It was switching no cars at all. In

the second place the petitioner had nothing to do with

its operation; he merely kept up steam and poured

in water. Nor was the petitioner, within the applicable

decisions of this Court, engaged in work so closely re-

lated to interstate transportation as to be practically

a part of it. He was certainly no closer to interstate

transportation than was the employee who fired a loco-

motive engine to generate steam for heating coaches

np

8

from interstate suburban trains. Chicago & North-

western Railway Co. v. Bolle, 284 U. S. 74. Or the

employee who was injured while oiling a machine which

furnished the power to hoist into a chute coal for the

use of locomotive engines principally employed in

the movement of interstate freight. Chicago & Eastern

Illinois Railroad Co. v. Commission, 284 U. S. 296. Or

the employee who was moving the main driving wheels

to a pit in the roundhouse so that they could be placed

under a locomotive used for interstate transportation,

which was undergoing repairs in connection with a

boiler wash. New York, New Haven & H artford Rail-

road v. Bezue, 284 U. 8. 415. Or the employee engaged

in repairing an engine which had been used in interstate

business and which was used shortly after the accident

in interstate transportation. Minneapolis & St. Louis

Railroad Company v. Winters, 242 U.S. 353. Or the

member of the switching crew which was switching coal

from a storage track to a coal shed where it was to be

placed in bins and supplied, as needed, to locomotives in

interstate and intrastate transportation. Chicago,

Burlington & Quincy Railroad Co. v. H arrington, 241

U. 8.177. Inall of these cases the employee was one or

more steps removed from interstate transportation,

and he was held not subject to the Federal Act. The

petitioner was just as remote from interstate trans-

portation.

3 The decision of the Supreme Court of the State of

Kansas upon a Federal question of substance is in

direct conflict with White v. Lehigh Valley R. Co., 251

App. Div. 507, N. Y. Sup. Ct., App. Div., 3rd Dept.,

app. denied, 276 N. Y. 690, which is brief enough for

quotation:

‘Appeal by the Lehigh Valley Railroad Com-

pany from an award of death benefits. The em-

9

ployee, while repairing a locomotive on June 20,

1935, received injuries which caused his death.

The locomotive, each day from 3 p. m. to 7 a. m.,

was used in the East Buffalo yards of employer

to move and place inter and intra state cars. On

the day of the accident, it was taken to the round-

house about 7:15 in the morning. The fire was

extinguished and the water drained, repairs were

made to the tank, air pump, and to certain rods and

bolts, and leaky flues in the boiler were calked. It

returned to its work as a yard engine at 3 o’clock

the same afternoon. Decedent, at the time of his

injury, was not employed in interstate commerce

within the purview of the Federal Employers’

Liability Act, 45 U.S. C. A. Sees. 51-59.’’ (Italies

supplied. )

This case was cited in the petitioner’s brief before the

court below, and again called to its attention on rehear-

ing (R. 95-96), but was completely disregarded by it.

4. This Court should reconsider its decisions and

formulate a test for the application of the Federal Km-

ployers’ Liability Act which will not operate, as it has

countless times in the past, to deprive injured railroad

employees of compensation or to grant them compen-

sation only after a long struggle with rich and powerful

railroads. The petitioner’s plight vividly illustrates

the unjust operation of the deceptively simple and

exclusive test laid down in former decisions. More

than three years have passed since he was injured in the

employment of respondents, and he has yet to receive

any compensation whatever.

An indefinite and exclusive concept of employment

under the Federal Act puts the injured railroad worker

a

or his survivors to a gambler’s choice between State

and Federal Acts. The railroads merely stand back

until the perilous choice is made, and then, pursuant

to the time-worn conventions of the adversary system,

file a defense to the effect that the employee came under

the other act. The uneven contest goes on for years,

while the worker or his family spends years alternating

between hope and no hope of recovery, at the end of

which, as in this ease, an appellate court may announce

that the worker selected the wrong statute. By that

time it may be too late for action under the other act.

And the worker learns by bitter experience that one

remedy plus another equals, not two, but none.

Had the petitioner proceeded under the Federal Act,

the books are filled with decisions from which the re-

spondents could have argued that he should have pro-

ceeded under the State Act. Nor does the 1939 amend-

ment to Section 1 of the Act,’ which was enacted after

the petitioner’s cause of action accrued, eliminate the

worker’s harsh dilemma. The enlarged definition of

employment within the Act still leaves an area of

doubt in which the worker may be remediless, or with a

remedy only after years of litigation—in effect a denial

of aremedy. Indeed, the new scope of the Federal Act,

if given exclusive application, foreshadows a repeti-

tion by this Court of the tiresome and uninspiring

task of pricking out by a process of inclusion and ex-

clusion from a kaleidoscope of varying fact situations

what duties ‘‘shall be the furtherance of interstate or

10

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

employee shall be the furtherance of interstate or foreign commerce ;

or shall, in any way directly or closely and substantially, affect

such commerce as above set forth shall, for the purposes of this

Act, be considered as being employed by such carrier in such com-

merce * * *.” 53 Stat. 1404,45 U.S.C. A. Sec. 51.

BEES DRESS PNEE LS GL ONE YETI SL UNE ND NA? MR ROT EER MIS EA ANGE AD SO aT A NI A a ear ac

11

foreign commerce”’ or shall ‘“‘in any way directly or

closely and substantially, affect such commerce’’. This

Court should recognize overlapping State and Federal

jurisdiction in doubtful cases, and permit the worker a

choice of remedies. It should rule that he must not be

denied relief because he proceeded under the State Act

instead of the Federal Statute, or vice versa. Such a

rule would prefer experience to logic in law.

Continuing the indefinite, exclusive application of

the Federal Employers’ Liability Act will perpetuate

the ‘‘form of social injustice’ recognized by President

Theodore Roosevelt when, in urging the enactment of

more advanced legislation, he stated to the Congress,

‘“‘The practice of putting the entire burden of loss to

life or limb upon the victim or the victim’s family is a

form of social injustice in which the United States

stands in unenviable prominence.’’ See 42 Cong. Ree.

73, 1907. As has been pointed out by eminent commen-

tators, the Supreme Court’s exclusive test is an un-

workable concept.

**Ever since the passage of the Federal Em-

ployers’ Liability Act, the chase of this elusive is-

sue [intrastate or interstate concept of transporta-

tion] has been a game of blind man’s buff for bench

and bar, as though life and limb and the rational

conduct of railroad enterprise were not at stake;

or, to put it in Judge Learned Hand’s language of

ratiocination, ‘the cases are full of casuistry’.’’*

These remarks are equally pertinent to the new defini-

tion of employment within the Act. The question re-

* See Frankfurter and Landis, The Business of the Supreme Court

at October Term, 1931 (1932) 46 Harv. L. Rev. 226, 245.

See also Schoene and Watson, Workmen’s Compensation on Inter-

state Railways (1934) 47 Harv. L. Rev. 389, 394, 398.

ae : ane ncn I NGI I PRET NMG OI IEA

12

mains one of vital importance to a large number of

railroad workers in America. Their dilemma can be

avoided only by recognizing that State and Federal

statutes can overlap in doubtful cases.

5. Even if the petitioner was engaged in interstate

transportation or work very closely related to it, his

sole remedy is under the State Compensation Act. He

did not allege or prove fault upon the part of the re-

spondents, and the Federal Employers’ Liability Act

provides relief only for injuries ‘¢resulting in whole or

in part from the negligence of any of the officers, agents

or employees’’ of interstate railroads. Nevertheless,

the State Court, under the compulsion of New York

Central Railroad Co. v. Winfield, 244 U. S. 147, held

that the Federal Employers’ Liability Act regulates

the liability of interstate carriers to employees in inter-

state commerce, both inclusively and exclusively, and

precludes State relief * for injuries without fault in

this field, although the Federal Act provides no remedy

(R. 78-79). Thus, the Supreme Court of Kansas ap-

plied the Federal Employers’ Liability Act even though

no fault was alleged or proved. This holding raises a

very important question of statutory construction,

deemed settled by the Winfield case, which should be

reconsidered by this Court. In that case, despite a

powerful and cogent dissent by Justices Brandeis and

Clarke, a majority of the Court held that the Federal

’The Kansas legislature clearly intended to exert its legislative

power in its fullest extent and undoubtedly enacted a remedy for

railroad employees injured in interstate commerce in cases not con-

trolled by the Federal Employers’ Liability Act. Thus, Sec. 44-506,

Kans. Gen. Stat. (1935), provides that the State Compensation Act

excludes only those businesses or employments “which, according to

law, are so engaged in interstate commerce as to be not subject to

the legislative power of the state ed (8x

—

13

Act prohibited States from including within the pro-

tection of their workmen’s compensation laws em-

ployees who, without fault on the railroad’s part, are

injured or killed while engaged in interstate commerce,

although the Federal Act itself offered them no protec-

tion. This Court should overrule New York Central

Railroad Co. v. Winfield, and adopt the unimpeachable

view taken by Justices Brandeis and Clarke:

‘‘The field covered by Congress was a limited

field of the carrier’s liability for negligence, not

the whole field of the carrier’s obligation arising

from accidents. I find no justification for im-

puting to Congress the will to deny to a large class

of persons engaged in a necessarily hazardous occu-

pation and otherwise unprovided for the protection

afforded by beneficient statutes enacted in the long-

deferred performance of an insistent duty and in

a field peculiarly appropriate for state action.”’

(pp. 169-170)

The record contains no proof of negligence on the

part of the respondents (R.37). The petitioner’s whole

case is based upon liability without fault (R. 6-7).

The Federal Act provides no remedy for cases such as

the one presented by this record. Thousands of rail-

road employees, hurt or injured without fault while

engaged in interstate transportation, have been com-

pelled to bear the entire burden of inevitable industrial

accidents. This condition was created by a narrow,

legalistic and erroneous construction of the Federal

Employers’ Liability Act by a majority of this Court

in the Winfield case. Railroad workers should be pro-

tected from this no-man’s land into which Congress has

not entered and from which the States have been barred

by judicial decision.

ee SOROS RLENE ENC OTE IEE

14

This Court should overrule New York Central Rail-

road Co. v. Winfield and should hold that the petitioner,

even if in interstate commerce, is within the jurisdiction

of the Kansas Workmen’s Compensation Commission.

CONCLUSION

It is therefore respectfully submitted that this peti-

tion for a writ of certiorari should be granted.

Cuar.es A. Horsky,

DaniEL L. BRENNER,

Attorneys for Petitioner.

(4531)