Breen v. Iowa Central Railway Co.

184 Iowa 1200

Opinions

Ladd, J.

1. Carriers: failure to allege interstate character of injury. The plaintiff’s assignor, Myles Kelleher, was seriously injured, September 29, 1908, while acting as engineer, in consequence of the breaking of the side bar of a locomotive, when in operation. This action was begun August 10, 3910, and the first trial was concluded October 13, 1911, by the entry of judgment against the defendant. On appeal, this judgment .was reversed, May 14, 1913. Breen v. Iowa Cent. R. Co., 159 Iowa 537.

The cause was again brought on for trial, September 30, 1913, and as, in the course of the cross-examination of Kelleher, evidence was elicited tending to show that the train of which he was engineer at the time he was injured, was engaged in interstate commerce, the defendant, after the introduction of all the evidence, moved that the jury be directed to return a verdict for defendant, on three grounds: (1) Variance between the allegations of the petition and proof; (2) the bar of the statute of limitations; and (3) the invalidity of the assignment of the cause of action. Thereupon, plaintiff moved that all evidence tending to show that either plaintiff or defendant was engaged in interstate commerce at the time of the injury be stricken. The defendant resisted this motion, and it was overruled, as was also the motion that the jury be directed to return a verdict for the defendant.

A verdict was returned for plaintiff. Thereupon, defendant’s counsel filed a motion in arrest of judgment, a motion for judgment non obstante veredicto, and a motion for new trial. Resistance was interposed, and the court overruled the first two motions, and sustained that for new trial.

In its opinion, the court pointed out that the petition stated a cause of action solely under the state law; that the plaintiff’s proof in connection with defendant’s cross-examinations developed a case solely under the Federal law; and therefore, plaintiff not only had not made out a case, under the pleadings,' but had conclusively shown that he had none, the judge observing:

“The question of the variance of the plaintiff’s evidence from the plaintiff’s pleadings is not a question of pleading. It is a question that can arise for the first time after the plaintiff has introduced his evidence. If, when the evidence is in, it establishes, not the cause of action counted upon in the petition, but a different cause of action, the defendant can then raise the question in a motion to direct the jury; and that is the first time that the question can be properly raised. In the case at bar, the defendant offered no testimony, and, immediately upon the testimony being concluded, raised the question that the suit was one brought under the laws of the state, whereas the undisputed proof established that the cause of action was, in fact, based, and should have been brought under, the Federal Employers’ Liability Act.”

The third trial came on J anuary 13, 1914, in the course of which Myles Kelleher testified, in substance, that the train had been hauled by his engine from Albia to Marshalltown (wholly within this state), and other matters. Counsel for defendant undertook to develop, on cross-examination, that the train was a through train, from St. Louis, Missouri, through Iowa, to St. Paul, Minnesota; but objections as not cross-examination were sustained. It did not appear, when all the evidence of plaintiff had been adduced, that Kelleher was engaged in interstate commerce when injured.

The conductor on the train was called by defendant, and this question propounded:

“Tell the jury where that train was coming from and where it was going to, — this train that Myles Kelleher, as engineer, was operating that night.”

An objection “as incompetent, immaterial, and irrelevant to any issue in this case, no issue upon that question presented by this interrogatory,” was sustained.

Thereupon, defendant filed an amended and substituted- answer, putting in issue the negligence alleged, the validity of the assignment of the claim to plaintiff, and pleading assumption of risk, as theretofore, but for the first time alleging that Kelleher, at the time of the injury, was engaged as locomotive engineer in pulling a passenger train,. an interstate load; that the rights and liabilities of Kelle her and defendant are governed by the Federal Employers’ Liability Act; and that claim thereunder was barred by Section 6 of said act (36 Stat. at L. 291, Ch. 143). Plaintiff moved to strike the portions pleaded for the first time; and, though defendant resisted, the motion was sustained. The jury again returned a verdict, on which judgment was entered.

This appeal presents three questions: (1) Whether the court erred in not permitting defendant to show, on cross-examination of plaintiff’s witnesses, that Kelleher, when hurt, was engaged in interstate commerce; (2) whether there was error in not permitting the defendant to show, by way of defense, that Kelleher and it were then so engaged; and (3) whether the court erred in striking the portion of the amended and substituted answer alleging that defendant and Kelleher were then so engaged, and pleading the statute of limitations.

2. Witnesses: cross-examination on non-issuable fact. I. Kelleher,. as well as the fireman, testified, on direct examination, that the engine was operated, on the day of the injury, in hauling a passenger train from Marshalltown to Albia, and that the accident occurred on the return trip, about one and one-half miles before reaching Marshall-town. On cross-examination, the witness was asked questions calculated to elicit information as to whether the trains being hauled were through trains from St. Paul, Minnesota, to St. Louis, Missouri, ajad whether some of the cars had come or were being taken across state lines. Objection as not proper cross-examination was sustained. It is manifest that answers to these inquiries would throw no light upon the happening of the injury nor the cause thereof nor the responsibility therefor, and would not be pertinent to any issue in the case; and the only purpose of the inquiries was to inject a new issue, not pleaded by either party. That trains may have been hauled over this railroad from St. Paul to St. Louis, or that the train in question may have been on its way between such points, tended- in no manner to throw any light upon the particular accident complained of, or the relationship of the parties to each other, and did not cast any doubt upon the undisputed testimony that it was being hauled from Marshalltown to Albia. Cross-examination may well be limited to the facts brought out in the examination in chief, and pertinent to the issues involved, when not resorted to for impeaching purposes; and we are of the opinion that the objections interposed were rightly sustained. The situation in a case like this is peculiar; for there are two possible remedies for the same injury, depending solely on the relations of the' parties to interstate commerce. Both remedies are administered by the same court, and it is important that these remedies shall be so administered that one may not be made a pitfall for, or played by ingenious counsel against, the other. If, in an action under the state law, the defendant does not raise the issue that the parties were engaged in interstate commerce at the time, rulings on the admissibility of evidence are to be made as though that issue was not involved. If, however, facts bringing the alleged injury within the Federal Employers’ Liability Act are pleaded, then, of course, such issue is to be taken into account in limiting the range of cross-examination. There was no error.

II. Nor might defendant show affirmatively, as a defense against the claim for damages alleged in the petition, in the absence of so pleading, that the engineer and the company were engaged in interstate commerce at the time of the injury. We so ruled in Bradbury v. Chicago, R. I. & P. R. Co., 149 Iowa 51; and nothing to the contrary is to be found in the decisions of the Supreme Court of the United States. In St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156 (57 L. Ed. 1129), notwithstanding suit was brought un der the state law,- “when the evidence was adduced, it developed that the real cause was not controlled by the state statute, but by the Federal statute. In short, the case pleaded was not proved, and the case proved was not pleaded.” The decision rests on this ground, as does St. Louis, I. M. & So. R. Co. v. Hesterly, 228 U. S. 702 (57 L. Ed. 1031), and Toledo, St. L. & W. R. Co. v. Slavin, 236 U. S. 454 (59 L. Ed. 671). This is tantamount to saying that, as the provisions of the Federal Employers’ Liability Act supersede the state statutes, as to injuries suffered by employees while engaged in interstate commerce, there was a fatal variance between the pleading and the proof. In none of these decisions is there to be found any intimation that the issues to be determined are to be made otherwise than in accordance with the practice which obtains in the state courts.

In Atlantic C. L. R. Co. v. Mims, 242 U. S. 532 (61 L. Ed. 476), the decisions cited were construed as stated. There, the cause of action pleaded was under the state law, and at the second trial, after plaintiff had rested her case, defendant for the first time tendered evidence tending to prove that the train which the deceased was in the act of approaching to inspect, when he was killed, was engaged in interstate commerce, and that deceased also was so engaged. This evidence was rejected, as coming too late, and as “not relevant to any issue tendered by the pleadings in the case. No application was made for leave to amend the answer by adding the claim under the Federal law.” With reference thereto, the court, speaking through Clarke, J., said:

“The practice differs in the courts of the various states as to what testimony may be introduced under 'a specific denial,’ such as was filed in this case, and the Supreme Court of South Carolina, while recognizing fully the ruling character of the Federal Employers’ Liability Act, when the facts making it applicable are properly pleaded, yet, up on full and obviously candid and competent consideration, decided, as we have seen, that, under the settled rules of pleading in that state, the evidence tendered was not admissible. The essential justice of this decision, which is the fundamental thing, commends it to our favor. * * * To become the basis of a proceeding in error from this court to the Supreme Court of a state, 'a right, privilege, or immunity’ claimed under a statute of the United States must be 'especially set up and claimed,’ and must be denied by the state court. Rev. Stat. § 709, Judicial Code, § 237 (36 Stat. at L. 1156, Ch. 231, Comp. Stat. 1913, Section 1214). This means that the claim must be asserted at the proper time, and in the proper manner, by pleading, motion, or other appropriate action, under the state system of pleading and practice (Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 308 [47 L. Ed. 480, 484, 63 L. R. A. 33, 23 Sup. Ct. Rep. 375]) ; and upon the question whether or not such a claim has been so asserted, the decision of the state court is binding upon this court, when it is clear, as it is in this case, that such decision is not rendered in a spirit of evasion, for the purpose of defeating the claim of Federal right. Central Vermont R. Co. v. White, 238 U. S. 507 (59 L. Ed. 1433, 35 Sup. Ct. Rep. 865, Ann. Cas. 1916B, 252, 9 N. C. C. A. 265); John, Guardian, v. Paullin, 231 U. S. 583 (58 L. Ed. 381, 34 Sup. Ct. Rep. 178); Erie R. Co. v. Purdy, 185 U. S. 148 (46 L. Ed. 847, 22 Sup. Ct. Rep. 605); Layton v. Missouri, 187 U. S. 356 (47 L. Ed. 214, 23 Sup. Ct. Rep. 137).”

The court then pointed out that the decisions heretofore cited proceeded on the theory that the evidence that the parties were engaged in interstate commerce had been received without objection or had been held by the state courts to have been properly received, and added:

“While it is true that a substantive Federal right or defense duly asserted cannot be lessened or destroyed by a state rule of practice, yet the claim of the plaintiff in error to a Federal right not having been, asserted at a time and in a manner calling for the consideration of it by the state Supreme Court under its established system of practice and pleading, the refusal of the trial court and of the Supreme Court to admit the testimony tendered in support of such claim is not a denial of a Federal right which this court can review.”

The writ was thereupon dismissed. The trial court, then, did not err in sustaining objection to the proffered testimony.

3. Pleading: negligently delayed amendment. III. Immediately upon the exclusion of evidence tending to show that Kelleher, when injured, was engaged in interstate commerce, tendered' by defendant on February 15, 1914, the latter filed amended and substituted answer, which repleaded the aver- , „ ,. . . , , ments ot the answer as previously amended, and, for the first time, facts bringing the injury within the Federal Employers’ Liability Act, the bar of the statute of limitations thereunder, and the invalidity of the assignment. On -motion, this was stricken, as' coming too late.

This amendment pleaded for the first time this defense; and, unless Bradbury v. Chicago, R. I. & P. R. Co., 149 Iowa 51, is to be overruled, and numerous other like rulings by this court, we should not interfere. There, the amendment stricken, pleading a like defense, was filed after all the evidence had been introduced at the first trial; here, the pleading was filed after the close of plaintiff’s evidence and the partial examination of a witness in behalf of defendant, at the third trial.

In Vorhes v. Buchwald, 137 Iowa 721, refusal to allow an amendment changing the issues tendered after plaintiff had rested, was approved, no excuse for the delay appearing. Striking an amendment to a petition setting up a new ground of attachment after the jury was impaneled was approved, in Emerson v. Converse, 106 Iowa 330, there appearing no occasion for the delay. See, also, Moyers v. Fogarty, 140 Iowa 701, and Allen v. Forth Des Moines, etc., Church, 127 Iowa 96, where like rulings were approved.

The language of National Horse Imp. Co. v. Novak, 105 Iowa 157, is especially pertinent:

“There were two trials of the case, and at the conclusion of the appellants’ evidence upon the last trial, defendant Novak, Sr., offered an amendment to his answer, pleading that he signed the note as surety after it had been fully executed and delivered, and that there was no consideration for his contract. The only excuse for not filing it at an earlier day was that he was unacquainted with legal proceedings, and supposed his attorneys had obtained knowledge of the facts, and had filed such an answer. The trial court refused to consider the amendment; and of this, complaint is made. While the rule is to allow amendments, and to refuse them the exception, yet the trial court is necessarily vested with a large discretion in such matters, and this court will not interfere, in the absence of a showing of legal abuse of this discretion. Heusinkveld v. Insurance Co., 96 Iowa 224. There is no such showing in this case. The amendment tendered an entirely new and distinct issue, after the case had once been tried, and at the conclusion of defendant’s evidence upon the second trial. No good reason appears for not filing it before that time. Indeed, it appears that defendant knew of the defense at all times, and that either he or his counsel were negligent, or that they had a ‘masked battery,’ which they did not uncover until the last moment. In either event, the trial court was justified in not considering it.”

Though it was aware, as appears from the filing of its own motion to direct a verdict at the second trial, of the existence of the defense now urged, such a claim was not asserted in the pleadings, until after defendant had begun the introduction of evidence at the third trial. True, defendant had succeeded in eliciting evidence, on cross-examination at the second trial, tending to show that the injured party was engaged in interstate commerce, at the time of being injured; and, as this went in without objection or conflict, it may be that a fatal variance developed. The only bearing of the incidents of that trial, however, is with respect to the propriety of allowing the amendment tendered. The court, in ruling on the motion for new trial, as seen, distinctly pointed out the necessity of such an amendment as a basis for the introduction of the evidence proffered at the third trial. Moreover, the defendant was quite as well advised, at the time of filing its original answer*, as at the time of tendering evidence at the third trial, of the necessity, under the practice of this state, to plead, in order to prove, facts necessary to bring the case under the Federal law; for the opinion in Bradbury v. Chicago, R. I. & P. R. Co., supra, was filed October 26, 1910, and the Federal decisions had recognized the right of state courts to prescribe their own methods of practice in all classes of cases involving Federal enactments long before that time. Texas & N. O. R. Co. v. Miller, 221 U. S. 408 (55 L. Ed. 789); Yazoo & M. V. R. Co. v. Adams, 180 U. S. 1 (45 L. Ed. 395).

Apparently, defendant was content to submit the issues under the statutes of the state, until it succeeded in extracting enough evidence, on cross-examination at the second trial, on which to base a claim of variance. Nor does anything appear, indicative that such amendment would have been in promotion of justice. Plaintiff’s assignor was injured, not killed; and defendant could have gained no material advantage in the trial by having the claim for damages asserted under the Federal Employers’ Liability Act, rather than under the state law, save the opportunity to set up the bar of the statute of limitations, and assert the, invalidity oí the assignment of the cause of action to plaintiff. Neither of these went to the merits, nor was available against the cause of action alleged in the petition.

The plaintiff had the right to bring his action as he did, and violated no duty in not including allegations bringing his claim within the terms of the Federal .Employers’ Liability Act. Nor was he in a situation to compel defendant to include such allegations in its answer. Each prepared his own pleadings.

Whether evidence raising the variance was admissible was not touched, save in indicating that facts bringing the injury under the Federal Employers’ Liability Act must be pleaded, if affirmative proof were to be introduced by the defendant. Even with this indication of the attitude of the court, the amendment was not proffered until plaintiff had rested, at the subsequent trial. No excuse for not sooner pleading is to be found in the record; and we are content in saying that the interposition of these defenses cannot be said to so vitally affect the justice of the cause as that the court must be held to have abused its discretion in not permitting them to be asserted for the first time at such period in the third trial. The allowance or refusal of amendments is within the sound discretion of the trial court, and only upon a clear showing of an abuse thereof will this court interfere. There was not such a showing in this case, and we may not denounce the ruling of the court in striking the amended and substituted answer from the files as erroneous. As the assignment of the cause of action to plaintiff was valid under the statutes of this state, there is no occasion to inquire whether a cause of action under the Federal law might be thus transferred, at the time the assignment was executed.

The record is without reversible error, and the judgment is — Affirmed.

Preston, C. J., Weaver, Evans, Gaynor, and Stevens, JJ., concur.