Petition for Writ of Certiorari — Pyle v. Tennessee Central Railway Co.

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SUPREME COURT OF THE UNITED pants © fate

OCTOBER TERM, 1940

13

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No.fMae, <2

MRS. NANNIE PYLE,

Petitioner,

vs.

TENNESSEE CENTRAL RAILWAY COMPANY.

PETITION FOR WRIT OF CERTIORARI TO THE |

SUPREME COURT OF THE STATE OF TENNESSEE

AND BRIEF IN SUPPORT THEREOF.

:

INDEX

Page 4

Pili Cer en. bos SG 1 4

Mine’ OF GON. Se sos. es 1 .

ROS I i oye Sas th ayia Q cans 6 e

Reasons for ailowance of this writ............. 7 .

Pemet THE OIA one os eh Se os ow 7

I I oe ee 5G ans Pe wecme i) :

NU MN sc ca «Sin Sid ad e's Wales a RS 9 ‘

a od icy oi 0 os Ses 9h hes 9 :

A. Bpatatory provisions ................: i) t

DD. See OE SUORE. ea 9 &

Cr. Seer ae WE I Gs ooh ae a cv oy) Hy

D. Rulings of Court Below............... 10 .

Kk. Cases sustaining Jurisdiction.......... 13 .

Baenmiatieh OF O0TONE oy oe ee ne 14 E

inte Gr Te WERE. Se ae 16 :

PI ae no ce Viv Se eae 16 |

Conflict with other authorities................ 23

(a) Conflict with holdings of U. S. Supreme Pa

SE sc oe eee ge ag 23 :

(b) Conflict with other Federal Courts. .... 27

(c) Conflict with Courts of other States. ... 28

(d) Conflict with other decisions in Ten-

ice ik es Ue ee 40

NN a ew te eae ae oul ae 41

TABLE OF Cases CITED.

Alexander v. Great Northern R. Co., 51 Mont. 565,

L. R. A. 1918 EB. 862, 154 Pac. 914................ 33

Arizona Eastern R. R. Co. v. Head (1924), 26 Ariz.

127, 222 Pace. 1041; Motion to modify judgment

denied in 1924, 26 Ariz. 259, 224 Pace. 1057........ 37

Armburg v. Boston & M. R. Co., 276 Mass. 418, 177

BT Oley Ge Ak Bs Be Ge rere as 38

Atchison T. S. P. R. Co. v. Pitts, 44 Okla. 604, 145

WU: SA yds errs pei aah slay aae a eos oko 35

Bolchv.C. M. & St. P. Railroad, 90 Wash. 47, 155 Pac.

BI 2G oe 0 he MR ea pth eee ue Saks 29

Bottom v. St. L. @ S. F. R. Co., 179 Fed. 318......... 19

Bravis v. Chicago & St. P. R. Co., 133 C. C. A. 228,

Ee NE IS oo is oh RN aa A a eS 24

—4221

SPR SHAG E NA PA 5 BEAN IE ST RTI IY RE

il INDEX

Charleston & W.C. R. Co. v. Anchors (1912), 10 Ga.

Apo. 398, 73 8. B. S51... ......-..- =. +--+ ----

C. & O. Ry. Co. v. DeAtley, 241 U. S. 310, 60 L. Ed.

1006, 26.6. ©. B. OG4.............--. +--+.

C. R.1. & P. Ry. Co. v. Devine, 239 U. 8. 52, 60 L. Ed.

ce | 8st 8 See er ee

Defenbaugh v. Union P. R. Co., 102 Kan. 569, 171 Pace.

re rN Si na weed eaees avast

Dickinson v. Industrial Board (1917), 280 Ill. 342, 117

a oS a, ae WA Said wus 4

Dickinson, Receiver, v. Stiles, 246 U.S. 631, 62 L. Ed.

§ 3 Og See ee eee

1 W.&L.R.Co.v. Yurkonis, 238 U. S. 444, 59 L. Ed.

eS Bl een ee eee

Dupois v. La. R. & Nav. Co. (1924), 155 La. 923, 99

MR Se irs oe a hk San wena a ger

Erie R. R. Co. v. Collins, 253 U. S. 77, 64 L. Ed. 790. .

Erie R. R. Co. v. Welch, 242 U. S. 303, 61 L. Ed. 319,

ee Te TB se ra wn aw oe ey

Erie R. R. Co. v. Winfield, 244 U.S. 170, 61 L. Ed. 1057

Fentermacher v. C. R. I. & P. R. Co., 309 Mo. 475, 274

S. W. 718; Certiorari denied in 1925, 269 U. S. 576,

70 L. Ed. 420, 45S.C.R 102........,....-...--.

Foley v. Hines (1920), 119 No. 425, 111 Atl. 715 (Writ

of certiorari in 1921, 256 U. S. 690, 65 L. Ed. 1173,

PO Beare yee eee rere eee eee

Froelich v. Northern P. R. Co., N. Da., 173 N. W. 822

Giovio v. N. Y. C. R. Co., 175 App. Div. 230, 162 N. Y.

Supp. 1026; Affirmed in 1918, 223 N. Y. 653, 119

% 5 ae ee A ene oe

Grow v. Oregon Short Line R. Co., 44 Utah 160, 133

Pac. 398, Ann. Cas. 1915 B. 481...............--.

Harrington v. C. B. € Q. R. Co., 180 S. W. 448... ...

Hines v. Baecgtel, Md.,113 Atl. 126................

Hudson & M. R. Co. v. Lerio, 152 C. C. A. 641, 239

I ES NG ee ON ities alli KN ire wn 40 428

1. C. R. Co. v. Cousins, 241 U. S. 641, 60 L. Ed. 1216,

36 S. C. R. 446, reversing 126 Minn. 172, 148 N. V.

i ee aoe ae hee Renak ANE AS

ERTS DSR ee ARM, Rl BRT EERE Sm ES

Page

INDEX

I. C. R. Co. v. Behrens, 235 U.S. 473, 34 S. Ct. 646,

i i ee a io is eek ea ees kes

I. C. R. Co. v. Rogers, 136 C. C. A. 530, 221 Fed. 52. .

Jackson v. C. M. & St. P. R. Co., 210 Fed. 495.......

Karras v. Chicago & N. W. R. Co., 165 Wis. 578,

in &. A. 2007 BGT, 168 N. W. See. .............

Kihler v. Davis, 1923, 109 Neb. 837, 192 N. W. 732...

Kiser v. Metropolitan St. R. Co., 188 Mo. 10,175 8S. W.

RRL SEE ae AB eon Rc tg RAT ES eg Ora a

Klomp v. C. M. & St. P. R. Co., 210 Ill. App. 375... ..

Lamphere v. Oregon R. & Nav. Co., 47 L. R. A. (N.S.)

RRS pats Py ae RP ARES oe Og el oe

L.@ N.R.R.Co.v. Carter, 195 Ala. 382, 70 So. 65... .

Louisville, Etc., R. Co. v. Parker, 165 Ky. 658, 177

8 sy Sh ae ae ene

Malandrine v. Sou. N. Y. Power & R. Corp., 190 App.

SaeT, Fey Oe Ts hn PMD. TO. ss ce ie ee

M. K. & T. R. Co. v. Pace, Tex. Civ. App. 184, S. We

a DRA SIRI ERAS eRe So coat NST cearpe aegeaNih

M.K.¢éT.R.Co.v. Watson, Tex. Civ. App. 195, S. W.

1177

ey I pak erreer an ey ea pode a ee tS

UC crc ed eee es en soa os

Munn. & St. L. R. R. Co. v. Winters, 242 U. S. 353, 37

RDA eam ay Sy eaet aoe 1 rR alee ana

Miller v. K.C. & W. R. Co., 160 Mo. 371, 128 S. W. 336

Mitchell v. Louisville, Etc., R. Co., 194 Tl. App. 77. .

Mitchell v. Sou. R. Co., 23 Ga. App. 195, 98 S. E. 184

Morrison v. Chicago M. & St. P. R. R. Co., 103 Wash.

I I er a ae oa gg 4

North Carolina Railroad Co. v. Zachary, 232 U. S.

248, 58 L. Ed. 591, 34S. C. RK. 305................

N.Y.C.R. Co. v. White, 243 U. S. 188, 37 S. C. T. 247,

WO A Tks Be gee eee ene ee.

Penn. R. v. Knox, 218 Fed. 748, 134 C. C. A. 426

Prince v. N.C. & St. L. Ry., 152 Tenn. 189..........

Raymond v. C. M. & St. P. R. Co., 243 U.S. 43, 61 L.

Ed. 583, 37 S. C. R. 268

Gitinewmasee sear

Fo ac uk eA

Are

iv INDEX

Page

Ruck v. Chicago M. & St. P. R. Co., 153 Wis. 158, 140

Wee Me ee srr re ale 32

Salmon v. Sou. R. R., 133 Tenn. 223, 180 S. W. 165. . 25

Seaboard Air Line Ry. v. Horton, 233 U. 8. 492, 58

re € & | ois eer eee 13

Shanley v. Phila., Etc., R. Co., 221 Fed. 1012....... 28

Southern R. R. v. Maxwell, 117 Miss. 62, 77 So. 905. . 34

Sou. R. Co. v. Pitchford, 165 C. C. A. 230, 253 Fed. 736 28

Smith v. Interurban R. Co., 171 N. W.134.......... 35

State, Ex rel. Mulcahy, v. Hostetter, 139 S. W. (2d)

939; dismissing certiorari Mulcahy v. Terminal R.

Ass’n of St. Lowis, 123 S. W. (2d) 235.......... 39

Sullivan v. Chicago M. & St. P. R. Co., 163 Wis. 583,

Ws EE x es cote cee ey ce 33

Tennessee R. R. v. Chitwood, 163 Tenn. 303......... 13, 35

Tilliv. P. é R. R. Co., 263 Penn. 558, 107 Atl. 330... 24

T. St. L. d W. R. R. Co. v. Salvin, 236 U. 8. 454, 59

L. Ed. 671, 35 S. C. R. 306, reversing Ohio St. 536 13

Union Pacific R. R. Co. v. Huxoll, 245 U. 8. 535, 62 L.

Ms a le oe 13

Vaught v. Railway Co., 148 Tenn. 379.............. 12

Watts v. Ohio Valley Electric Co. (W. Va.), 88 S. E.

OE trea eas eee Ee tes os 38

Williams v. R. R. Co., 154 Tenn. 224................ 41

Yazoo & Miss. Valley R. R. Co. v. Houston, 114 Miss.

wee he, , BANARAS ita ine nese 31

Statutes Crrep.

Code (Tenn.), Sections 6851-6901................. 4,9

Code (Tenn.), Section 6856 Sub. (a)............... 4,7

Federal Employers’ Liability Act, 45 U.S. C. A. 51-99 17

Missouri Statutes Ann., 3299-3376, pp. 8229-8294... 39

U.S. Code, Title 28, Section 344(b)................ 6, 8,9

U. 8. Code, Title 45, Section 1.................:... 7

2

C4r4

SPP TERAP BR LANES BREIL ROL EI LAE PED EES INET RHETT NI ROS ee :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No. 1027

MRS. NANNIE PYLE,

Petitioner,

vs.

TENNESSEE CENTRAL RAILWAY COMPANY.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable the Supreme Court of the United States:

The petition of Mrs. Nannie Pyle, respectfully shows to

this Honorable Court, as follows:

A. Statement of the Case.

1. That on the 26th day of February 1938, the husband

of petitioner, Pearson Pyle, was an employee of the re-

spondent Tennessee Central Railway Company, and had

been for about 19 years (R. 16).

The said Pearson Pyle held the position of yard foreman

for the respondent Tennessee Central Railway Company

at Emory Gap, Tennessee, and had held this position for

about 14 years (R. 12).

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SANA PRR ARAN HOE RIN TRS

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SRAM REL EE LOHMANN Wy,

2

When asked what were the duties of her husband as yard

foreman, petitioner replied; ‘‘Well he looked after the en-

gines and kept the yards clean, called out the train crews,

notified the crews when their train was called to go out and

was clerk in the office making out reports and time slips’’

(R. 12). When asked, on cross-examination if her deceased

husband worked on engines and ¢ars, petitioner answered;

‘‘no, he wasn’t supposed to work on anything he was over-

seer to see it was done.’’ In answer to another question

as to whether he was just a foreman or overseer to see that

the work was done, she answered; ‘‘Yes, the work that

was to be done and he informed them when the engines were

ready to go out.’’ In answer to the next question being

asked if it was part of Pyles duties to call the train crews,

petitioner answered; ‘‘yes, he notified the crews when they

were to go out’? (R. 16). Petitioner’s husband, Pearson

Pyle, worked at the station at Emory Gap, Tennessee, all

of the time during the entire 19 years that he worked for the

respondent Railway Company (R. 16).

2. While engaged in the line of his duty in calling a crew

to go out on train No. 81, on February 26th, 1938, Pearson

Pyle, the husband of petitioner, was struck by a fast pas-

senger train on the tracks of the C. N. O. & T. P. Railroad

and was instantly or almost instantly killed (R. 12, 18,

19, 20).

Train No. 81, crew for which Pearson Pyle was calling at

the time he was killed, was a freight train operated by re-

spondent Railway Company and was made up at Emory

Gap, Tennessee, and its destination was Nashville, Tennes-

see (R. 17, 21, 22, 23).

Train No. 81, as it was finally made up and went out from

Emory Gap on the date that Pearson Pyle was killed, seems

to have consisted of 13 cars, seven of which were loaded

with Intra-state shipments or were empty and billed be-

3

tween Intra-state points. The other six cars were loaded

with Interstate shipments but the handling of these cars

is not shown. That is it is not shown whether they were

kept in continuous transit or had been sidetracked for some

length of time. That it is not shown when any of said six

cars were received by the Tennessee Central Company at

its Eastern Terminus at Emory Gap, Tennessee. Neither

is it shown whether these cars moved under a through way

bill or whether they had been billed from point of origin

to some intermediate point and had been or were due to be

rebilled to point of destination (R. 23).

Pearson Pyle had nothing to do with the making up of

train No. 81, on the day that he was killed, in the yards at

Emory Gap. The train was made up by the yard crew with

the yard engine under the direction of F. G. Gardner, the

agent and yard master, at Emory Gap. The only thing

Pyle had to do in connection with train No. 81 was to call

or notify the crew of the time fixed by Gardner for the

train to go out (R. 24, 26, 27).

R. C. Harsh, the conductor on train No. 81 was not on

duty and had done nothing toward the taking of the train

out at the time that Pyle was killed (R. 24).

E. E. Smith, the Engineer for train No. 81 on that date

who lived in Harriman, Tennessee, some two miles from

Emory Gap, had been called by Pyle by telephone about

ten minutes before Pyle was killed and did not arrive at

Emory Gap until about 35 minutes after Pyle was killed

and did not enter upon his duties until after that. It was

the duty of the engineer after he arrived at Emory Gap to

take the engine from the siding where it was stored and

couple it up to the train (R. 21, 22, 24).

The fireman, that was to go out on No. 81 had not been

notified. Pyle was on his way to call him at the time he was

killed,

SSAA EINE EIT ORY

cane

4

(3) The Tennessee Central Railway Company and the

C. N. O. & T. P. Railway Company. Both use the same

depot at Emory Gap, and have a common Agent and some

other employees in common. The general direction of the

track of both railroads at this point is North and South.

The Depot stands entirely on the East side of all the tracks.

Next to the depot come in order; the C. N. O. & T. P. North

bound main, then the South bound main, then the inter-

change tract, then some side tracts of the Tennessee Cen-

tral and then the Tennessee Central main line. Pyle was

killed by a fast passenger train, No. 6, on the North bound

main line of the C, N. O. & T. P., about opposite the freight

room of the depot, while crossing the tracks to call the

engineer for No. 81 (R. 17, 18, 19, 27).

(4) Your petitioner Nannie Pyle, as widow, of the de-

ceased Pearson Pyle, and for the benefit of herself and

her minor son Lucian Pyle, filed her petition in the Circuit

Court of Roane County, Tennessee, to recover compensa-

tion from the defendant Tennessee Central Railway Com-

pany, on the 27th day of January, 1939, under the provision

of the Workmen’s Compensation Law of Tennessee (Code

of Tennessee 1932 Title 14, Chapter 43, Sections 6851 to

6901, inclusive, and the amendments thereto) (R. 1-4).

Section 6856 of the Code reads in part as follows:

‘This law shall not apply to whom.—This chapter

shall not apply to:

‘*(a) Any common carrier doing an interstate busi-

ness while engaged in interstate commerce. * * *”

The defendant Tennessee Central Railway Company

filed its answer on May the 9th, 1939. The only pertinent

part of the same being:

‘It admits that it is a corporation engaged in doing

business as a common carrier by railroad, and that it

has in its employ more than five persons, but it is

5

engaged as a common carrier doing an interstate busi-

ness, and consequently said Workmen’s Compensation

Act (Section 6851 et seq. Code 1932) has no applica-

tion to defendant’’ (R. 4-5).

This case was heard before the Honorable Pat Quinn,

Judge, without the intervention of a jury, on September

29th, 1939 (R. 11). And was taken under advisement by

the Court and held until December 9th, 1939 (R. 6). At

which time a decree was entered in favor of your petitioner.

The said decree contained among other things the fol-

lowing:

‘And the statements of the respective parties made

in open court, stating and agreeing that this is a com-

pensation proceeding brought by Nannie Pyle, and the

widow of Pearson Pyle, to recover compensation, for

the benefit of herself and her minor son Lucian Pyle,

under the Workmen’s Compensation Law of Tennes-

see, and that there is only disputed question in this

case to-wit:

‘Was the deceased husband, Pearson Pyle, and the

defendant Railroad Company, in the duties that the

deceased was performing at the time of the accident

and his death, engaged in interstate commerce, or in

work so closely associated with it as to be a part of

it, so as to make the exclusion in said statute apply”’

(R. 6).

The defendant Railway Company filed its motion for a

new trial on December the 9th, 1939, which was carried

under advisement by the Court until January 22, 1940,

when the same was overruled and the said Railway Com-

pany prayed and perfected its appeal to the Supreme Court

of Tennessee (R. 8-11, 28).

The case was heard by the Supreme Court of Tennessee,

Eastern Division, and on November the 23rd, 1940, the

2c

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Court handed down an opinion reversing and dismissing the

case and decree was entered thereon on said date (R. 29, 33).

Your petitioner filed a petition to rehear which was over-

ruled and denied on February the 7th, 1941 (R. 33).

A certified copy of the entire record of said cause in the

Supreme Court of Tennessee is hereby furnished, attached

to and made a part of this application and marked Exhibit

A in compliance with the Rule of this Honorable Court.

Your petitioner is advised and believes that the said

judgment of the Supreme Court of Tennessee is erroneous

and that this Honorable Court should require said case to

be certified to it for review and determination in conformity

with the provisions of Title 28, Section 344 (Judicial

Code, Section 237), of the United States Code. The Su-

preme Court of Tennessee, being the highest court of the

State of Tennessee in which a decision could be had.

B. Questions Presented.

It is the contention of petitioner that Pearson Pyle was

the Agent and Servant of the Tennessee Central Railway

Company at the time he was killed and that the character

of work in which he was engaged at the time determines

the character of work or business in which his employer,

The Tennessee Railway Company, was engaged at the time.

It is the further contention of petitioner that the said

Pearson Pyle, at the time he was killed, was not engaged

in interstate commerce, as the same defined by Title 45,

Chapter 2, Section 51, of the United States Code with

amendments thereto and which was in effect at the date

of his death, February 26, 1938, and that the character of

work or business of the employer being determined by the

character of work in which the employee was engaged at

the time, that, therefore, the said defendant, Tennessee

Central Company, was not engaged in interstate commerce

at the time of the accident in which Pyle was killed.

Tat YON, AEE rn al Lae

SRE Se a CE Na as

7

That, therefore, subsection (a) of Section 6856, of the

Code of Tennessee, has no application in this case.

That the proper construction of said subsection (a) of

said Section 6856 of the Code of Tennessee calls for a con-

struction by the Court of Section 51, Chapter 2, Title 45,

of the United States Code as to what is interstate com-

merce, or as to when a carrier is engaged in interstate

commerce,

That the Supreme Court of the State of Tennessee has

erroneously construed said Section, by its opinion in this

ease, wherein it held that both Pearson Pyle and the de-

fendant Tennessee Central Railway Company were en-

gaged in interstate commerce at the time of the accident

in which Pearson Pyle was killed.

C. Reasons Relied On for Allowance of This Writ.

(1) The decision of said Supreme Court of Tennessee

misconstrues Section 51, Chapter 2, Title 28, of the United

States Code and is in conflict with the holdings of this

Court construing said statute.

(2) The decision of said Supreme Court of Tennessee

grants the defendant Railway Company a privilege or im-

munity under said Section 51, Title 45, of the United States

Code and under subsection (a) of Section 6856, of the Code

of Tennessee to which it is not entitled under the decisions

of this Court construing said United States Statutes and

other similar State Statutes.

(3) The decision of the said Supreme Court of Tennessee

is in conflict with the great weight of authority of this and

other courts construing said statutes and other similar

statutes.

Wherefore, your petitioner respectfully prays that a

writ of certiorari may be issued ont of and under the seal

sid) lie ond

1 CRT pe Wie

yey tegres

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ECM EY TIT

8

of this Court directed to the Supreme Court of Tennessee,

Eastern Division, commanding said court to certify and

send to this Court on a day certain to be designated a full

and complete transcript of the record and all proceedings

of the said Supreme Court of Tennessee, in said cause,

entitled Tennessee Central Railway Company v. Mrs.

Nannie Pyle, No. 2. From Roane County, to the end that

the said cause may be reviewed and determined by this

Court as provided by Section 237 of the Judicial Code

(Title 28, Paragraph 344, Subsection (b) U. S. Code), or

that your petitioner may have such other or further relief

or remedy in the premises as this Court may deem appro-

priate and in conformity with the provisions of the Judi-

cial Code (U. S. Code Title 28) and that said judgment of

said Supreme Court of Tennessee in said case and every

part thereof may be reversed by this Honorable Court.

Mrs. Nannie Py ez,

By J. W. Srons,

Attorney for Petitioner.

Mar R. Srrickxuin,

Attorney for Petitioner.

,

SECTS SOFT NPNER SENT MERI RIES IN ere Ri ae Ras et tna RR