Malvern Gravel Co. v. Mitchell, 238 Ark. 848

Sam Robinson, Associate Justice, The issue here is whether the appellant, Malvern Gravel Company, is liable under the Federal Employers’ Liability Act for injuries sustained by appellees, Arlie Mitchell and James Rogers, who were employees of the gravel company at the time they were injured. There were jury verdicts for the plaintiffs, Mitchell and Rogers. The gravel company has appealed.

If there is substantial evidence that the gravel company is a common carrier, within the meaning of the Federal Employers’ Liability Act, the trial court was correct in refusing to direct a verdict for appellant, but if there is no substantial evidence that the gravel company is a common carrier within the meaning of the aforesaid Act, the judgments must be reversed. Mitchell and Rogers, while working in the due course of their employment, were underneath a railway car closing a defective hopper door on a car which belonged to the Missouri Pacific Railroad Company.

They were severely injured when an employee of the gravel company, while operating a switch engine, shoved a railway car into the car under which appellees were closing the hopper door. Mitchell and Rogers, as employees of the gravel company, were awarded compensation under the Arkansas Workmen’s Compensation Law, which limits the amount of compensation recoverable.

Later, they filed suits in the Hot Spring Circuit Court against the Missouri Pacific Railroad Company, the Malvern & Ouachita River Railroad Company, and the Malvern Gravel Company, alleging that the defendants were common carriers engaged in interstate commerce; that they were, therefore, liable to appellees under the Federal Employers’ Liability Act. Under that Act, notwithstanding the Arkansas Workmen’s Compensation Law, there is no limit to the amount of recovery for a personal injury. Missouri-Kansas-Texas R. Co. of Tex. v. Waddles, 203 S.W. 2d 350; Schirra v. Delaware, L.&W.R. Co., 103 F. Supp. 812.

The cases of the plaintiffs .against the defendants were consolidated and proceeded to trial. After all parties had rested, the court directed a verdict in favor of the Malvern'& Ouachita River Railroad Company, and there is no appeal from the court’s action in that respect. The jury returned verdicts in favor of each plaintiff in the sum of $200,000 against the Missouri Pacific Railroad Company and the Malvern Gravel Company. Presumably, the Missouri Pacific settled the judgment against it. In any event, it is not a party to this appeal. Only the gravel company has appealed.

The principal issue, and the only one we reach, is whether the appellant, Malvern Gravel Company, is a common carrier within the meaning of the Federal Employers ’ Liability Act. Although it is engaged in interstate commerce, if it is not a common carrier as such a carrier has been defined by the Federal Courts, it is not liable under the Act.

The Federal Employers’ Liability Act provides: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . .” 45 D.S.C.A., Sec. 51.

The Malvern & Ouachita River Railroad Company, hereinafter called M & O, was issued a charter in Arkansas as a railway company in 1929. Actually, the M & O did not transport anything for anyone and was incapable of doing so. It only owned a right-of-way of about 1% miles with no rails thereon. As rolling stock, it owned one switch, engine, but no tracks on which to operate it and no railway cars to pull. It never, at any time, operated as a railroad or as a common carrier within the meaning of the Federal Employers’ Liability Act.

Although it may have been a common carrier under the provisions of Arkansas Constitution,

Article 17, Sec. 1, and because of having exercised the right of eminent domain, it was not a common carrier within the meaning of the Federal Employers’ Liability Act. The U.S. Supreme Court has said: “In our opinion, the words ‘common carrier by railroad’ as used in the act, [Federal Employers’ Liability Act], mean one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier.

This view not only is in accord with the ordinary acceptation of the words, but is enforced by mention of cars, engines, track, roadbed and other property pertaining to a going railroad.” Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S. Ct. 93. (Our emphasis.) In 1932, the Malvern Gravel Company was chartered as a corporation. The incorporators were entirely different from those who had incorporated the M & 0 in 1929. At the present time, the Malvern G-ravel Company owns the controlling stock in the M & 0 but there is no showing as to when the gravel company acquired the M & 0 stock.

Sam Clark is the president of both companies. He became associated with both companies about 15 years ago. As a corporation, the gravel company is authorized to excavate, mine, quarry and produce, refine, grade, crush, dress, manipulate, amalgamate and prepare for building and construction purposes or otherwise, prepare for market, and to purchase, manufacture, make, acquire, sell or otherwise dispose of, distribute, and generally deal in and with gravel, sand, stone, rock, clays, ores, metals, and vegetable and mineral substances and building and construction materials of all kinds, etc.

It was not authorized to operate as a railway company. Some time after the Malvern Gravel Company came into existence as a corporation, for the consideration of $2,500 per year, it leased from the M & O, a corporation that had never operated as “a going railroad”, the short right-of-way and a railroad engine owned by M & 0. The gravel company leased rails from the Missouri Pacific and caused them to be placed on the right-of-way it had leased from the M & 0.

By using the leased engine, rails and right of way the gravel company has been able to move its products from its plant to a point where they could be placed on the main lines of the Missouri Pacific and Rock Island Railroads, and thus transported in both intrastate and interstate commerce. The gravel company has never held itself out as a common carrier. In fact, with the exception of a few times, its railway facilities have been used by no one except the gravel company itself. At one time a road contractor had a “batch” plant located on gravel company' property near the gravel plant.

The gravel company was selling material to the contractor, and used its own railway facilities to deliver, on its own property, the material it was selling to the contractor. About a half dozen other times the gravel company, as a favor, permitted its facilities to be used, on the gravel company property, to unload material purchased elsewhere by others who did not have a convenient place or facilities to unload heavy material. No charge was made for such accommodations. The gravel company merely did a few friendly acts to help some neighbors.

The Missouri Pacific delivered and picked up its cars on the gravel company property. The gravel company, with its engine, picked up empties and delivered the ears that it had loaded with its own material to the Rock Island and was allowed $5.00 per car for doing so. This was done because the Arkansas Commerce Commission had a rule that a railroad company must do the switching or pay the customer for doing it. The Missouri Pacific did its own switching in connection with the gravel plant, but the Rock Island chose to pay the gravel company for doing it.

The Malvern Brick & Tile Company is near the gravel company property. The railroad track of the gravel company crosses property belonging to the brick company. The brick company also has a locomotive, and uses a portion of the track in question and helps to maintain it. The gravel company never handles any material for the brick company. Appellant argues that the burden of proof was on plaintiffs, appellees, to show that the Federal Employers’ Liability Act is applicable, and appellees concede that they had the burden of proof in that respect.

To sustain their contention that the gravel company is a common carrier, appellees, in their excellent brief, rely to a large extent on what are known as the “Tap Line Cases”, 234 U.S. 1. There, a number of lumber companies who operated short line railroads contended that they were common carriers; they held themselves out as such, and maintained that as common carriers they were entitled to a rebate of a part of the tariff collected by the principal railroads hauling the shipments. The Tap Line Cases are easily distinguishable from the. case at bar.

In those cases the court said: “They [the Tap Lines] are engaged in carrying for hire the goods of all those who see fit to employ them.” This statement in itself shows that the tap lines were common carriers. In the case at bar, there is no showing that the gravel company ever held itself out as being willing to haul for others, for hire or otherwise. In fact, the evidence is completely convincing that the gravel company operated the 1% miles of railroad solely for the purpose of getting its own products to market, and for no other purpose. Appellees also rely heavily on Kach v. Monessen Southwestern Ry.

Co., 151 F. 2d 400, but there the issue was whether the railroad company was operating in interstate commerce, and not whether it was a common carrier. Appellees cite several other cases as supporting their argument that the gravel company is a common carrier. We have carefully examined all the cited cases. They are distinguishable on the facts, and it would unduly extend this opinion to deal at length with each case. Appellees also suggest that the gravel company is a common carrier because of its close connection with the M & 0 Railroad.

There are three things that must combine to constitute a common carrier within the meaning of the Federal Employers’ Liability Act; (1) a carrier must be engaged in interstate commerce; (2) it must operate a railroad in interstate commerce; and (3) it must operate a railroad as a common carrier. Even if we should find that the M & 0 and the gravel company are so closely associated that they could be considered as one company, and that such cases as Black & White, Inc. v.

Love, 236 Ark. 529, 367 S.W. 2d 427, are applicable in that respect, it would not help appellees because according to many decisions of the Federal Courts, neither the M & 0 or the gravel company, or the two companies operating individually or in concert with one another have ever operated as a common carrier within the meaning of the Federal Employers’ Liability Act. Time and again the Federal Courts have defined a common carrier that comes within the meaning of the Act. We are bound by the decisions of the Federal Courts in that respect. Chicago, R.I. & P.R. Co. v.

Wright, Okla. 1954, 278 P. 2d 830, certiorari denied, 75 S. Ct. 581, 349 P.S. 905, 99 L. Ed. 1241. In Duffy v. Armco Steel Corp., 225 F. Supp. 737 (1964), the court held that a defendant is not “a common carrier by railroad” for purposes of Employers’ Liability Act where defendant owned and operated railroad equipment within its manufacturing plant, the equipment being used to transport material over leased right of way. The court said: “The railroad equipment owned and operated by Armco has not been used to transport goods of others, nor has Armco offered their use to the public.

Thus, it appears to a certainty that there is no genuine issue as to any material fact in this case. Defendant asserts, and the Court agrees, that defendant although operating in interstate commerce is not a common carrier by railroad.” It was held in Tilson v. Ford Motor Co., 130 F. Supp. 676 (1955), that where the operation of a railroad by an automobile manufacturer served only the automobile manufacturer, the automobile manufacturer was not a common carrier within the meaning of the Federal Employers’ Liability Act. In Kelly v. General Electric Co., 110 F.

Supp. 4, the electric company owned rolling stock and tracks and its tracks were partly located in the bed of a public street and were connected with those of a railroad common carrier. It shipped goods F.O.B. plant and moved cars partially loaded with goods of others. But it did not hold itself out as a common carrier and did not carry for hire the goods of others. The court held that it was not a common carrier within the meaning of the Federal Employers ’ Liability Act.

There, the court said: ‘ ‘ The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and hence is regarded in some respects as a public servant. The dominant and controlling factor in determining the status of one as a common carrier is his public profession as to the service offered or performed.” In Jones v. N.Y. Cent. R. Co., 182 F. 2d 326 (1950), the court quoted the language of the U.S. Supreme Court in Wells Fargo & Co. v.

Taylor, 254 U.S. 175, to the effect that a common carrier for the purposes of the Federal Employers ’ Liability Act is one who operates a railroad as a means of carrying for the public. There is no substantial evidence in the record that appellant or M & O operated a railroad as a means of carrying for the public. In other words, there is no substantial evidence that either or both companies operated as a common carrier within the meaning of the Federal Employers’ Liability Act. Reversed and dismissed. McFaddin & Johnson, J.J., dissent.