BAKER v. TEXAS & P. R. CO.

Print this transcript Transcript: 

Argument of Harvey L. Davis

Chief Justice Earl Warren: Dovie Ray Baker et al., Petitioners, versus (Inaudible) Railroad Company.

Mr. Davis.

Mr. Harvey L. Davis: Mr. Chief Justice Warren, may it please the Court.

This case is here on writ of certiorari to a Texas Court of Civil Appeal.

There are two basic questions involved there.

The first is whether the petitioners were denied their right to a trial by jury to determine whether Claude Baker, the deceased husband and father of petitioners was an employee of the railroad, the respondent, within the meaning of the Federal Employers' Liability Act.

And the second basic question is whether Claude Baker was such an employee of the railroad as a matter of law.

These are the pertinent facts.

Claude Baker was hired and he was paid by the W. H. Nichols & Company as a member of a crew to do a type of maintenance work called “grouting” along the main line roadbed of the Texas & Pacific Railroad.

He was killed by the negligence of one of the railroad trainman while he was working on the roadbed.

Now, this maintenance work of grouting consists of pumping into the roadbed by means of a hydraulic pump, a mixture of sand, cement and water to fill in voids under the roadbed and to force up water pockets and its purpose is to strengthen and to stabilize and straighten the roadbed.

The location for the grouting work was laid up by the engineering department of the railroad, and Claude Baker's job was to handle the cement.

He would pour cement into the cement mixture and other employees would pour the sand and water in it.

Baker would throw the cement sacks at his feet and occasionally would take the pile across the railroad tracks to be disposed of.

After Baker was killed, his widow filed for compensation insurance under the laws of Texas and was awarded a compensation award of some $7000 -- almost $8000, I believe it was.

Then her attorneys filed a common law suit for negligence against the railroad.

However, in the subsequent investigation of the suit, facts were discovered which led the attorneys to the belief that Baker was in fact and under the law an employee of the railroad and therefore the pleadings were amended to allege a cause of action against the railroad under the Act.

Now, the theory of the pleading was that the W. H. Nichols Company was not an independent contractor but was under the law and in fact an employee or an agent of the railroad and therefore Baker was an employee of the railroad and entitled to the benefits of the Act.

Justice Potter Stewart: May I ask you -- excuse me, Mr. Davis, so I can understand a little bit the Texas law?

It's true, I expect, is it, the -- the Texas Workmen's Compensation statute permits a widow such as the plaintiff here to sue a -- an alleged third party tortfeasor or -- at common law --

Mr. Harvey L. Davis: Certainly.

Justice Potter Stewart: -- even after she has collected the compensation under the statute?

Mr. Harvey L. Davis: Yes, sir.

Justice Potter Stewart: Is there any subrogation of anybody to complain?

Mr. Harvey L. Davis: The right of subrogation is allowed to the insurance company, I believe.

Justice Potter Stewart: Up to the amount that they pay?

Mr. Harvey L. Davis: We don't dispute that whatsoever.

Justice Potter Stewart: Up to the amount that they paid or --

Mr. Harvey L. Davis: Right.

Right.

Justice Potter Stewart: And is it also true that the Texas Workmen's Compensation statute by its terms, accepts a workman who is covered by the Federal Employers' Liability Act?

Mr. Harvey L. Davis: No, it accepts employees of railroads though.

Justice Potter Stewart: Employees of railroad.

Mr. Harvey L. Davis: Right.

And the only effective compensation insurance in this case as far as the law is concerned is that it has some evidence that -- that it may be construed as some evidence that Nichols was not an independent contractor.

However, there are cases directly in point where it has been held by the Court that the holding of compensation insurance by such a contractor indicates that it was an attempt to evade the provisions of the Federal Employers' Liability Act.

And we believe that fits this case here.

Justice William J. Brennan: Well, what would be the situation if you did have a recovery under the Federal Employers' Liability Act?

As I understand workmen's compensation was almost $8000?

Mr. Harvey L. Davis: Yes sir.

Justice William J. Brennan: Then what happens to that $8000?

Mr. Harvey L. Davis: If it's on common law negligence, there's no question that there is a right of subrogation by the insurance company.

Justice William J. Brennan: So even to an award under the Federal Employers' Liability Act?

Mr. Harvey L. Davis: There is -- there is no law on that point, Your Honor.

We don't contest it -- we've never raised any contest about whether the insurance company may or may not get it back.

They pled intervention and we did not answer their plea.

However, the respondents did answer and denied that they had the right to get it back.

We are unable to see whether it is any of the concern of the respondent, whether the insurance company gets it back or not.

It is their liability that we seek.

And then the compensation insurance is completely irrelevant to the liability of the respondent in this case.

Justice Charles E. Whittaker: (Inaudible)

Mr. Harvey L. Davis: Right.

Justice Charles E. Whittaker: -- then that would be to say that this would be (Inaudible) Federal Employers' Liability Act case, isn't it, because they have to (Inaudible)

Mr. Harvey L. Davis: No, it wouldn't exclude it.

But now in this case -- I'll answer it this way.

In this case, the petitioner, the widow did not know that there was a legal case that her employee under the law was an employee of the railway.

It was the lawyers who determined that that possibility arose.

She collected the compensation insurance believing he was only an employee of the Nichols Company.

Justice Charles E. Whittaker: (Inaudible)

Mr. Harvey L. Davis: No sir.

There --

Justice Charles E. Whittaker: (Inaudible)

Mr. Harvey L. Davis: No, sir.

There are no -- there are cases directly in point on that that it is not a stopple.

Further, the respondents have not pled that as a defense and have not argued except, I believe, they put it in their brief in this final brief.

We discovered during the investigation of the case that the respondent through its Inspector Slaton, exercised actual control and have the right to control almost all of the minute details of the work of Baker and the other employees of Nichols.

And also, in considering the written contract between Nichols and the railroad, we discovered that they had an indemnity clause, the effect of which was to completely exempt the railroad from any liabilities for doing this maintenance work.

And therefore, we concluded that it was in the teeth of Section 55 of the Act and was void.So our first and our main point is that the petitioners were deprived of their right of a jury trial because of the substantial evidence that was introduced in the trial that the employee, Claude Baker, of the Nichols Company, doing maintenance work on the railroads main land tracks was not an independent contractor.

Now, the test to determine whether the Nichols Company was an independent contractor that have been approved by this Honorable Court, are primarily whether the railroad have the control or the right to control the details of the work.

That was approved in the Bond case cited on page 19 of our brief.

Now, there's substantial evidence in the record to show that the workmen were told to obey Slaton and that they did obey him.

Slaton being the respondent's inspector.

That Slaton told them when and where to move these hydraulic jacks that only Slaton would mark the points where the hydraulic jack point would be inserted in the roadbed for pumping the grout mixture.

That Slaton told them how to mix the grout mixture, when to thicken it, when to thin it and he admonish the inattentiveness of the men if they allowed the grout mixture to escape from the roadbed that he watch to see that they didn't put too much grout mixture in the roadbed so as to hump the tracks and get it out of level and that he took care to see that the operation of the grouting work did not interfere with the trains.

Now, we believe that the jury was entitled to find these things as facts to show that the railroad through Slaton exercised actual control and had the right to control the details of the work.

But the trail court refused to submit any issues under the Federal Employers' Liability Act to the jury and held as a matter of law that the Nichols Company was not an independent contractor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Harvey L. Davis: Yes sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. Harvey L. Davis: No, sir.

One or the other.

And in that regard, the Court of Civil Appeals in its opinion on page 217 in the record and as summarized on page 28 of our brief, admitted that the petitioners exercise actual control of the details of the work but then they held that that exercise of actual control was quote immaterial and then they disregard at all the evidence that we had introduced about the right of the railroad to control the details of work and held as a matter of law that the railroad did not have the right of control relying on the written contract alone which said that there was no right of control by the railroad.

This proposition of law, we feel, is completely unfounded and wrong on its phase and there is no case in the books that says actual control is not material and would not be a jury issue.

They cited the Cimorelli case which is also discussed on 28 -- on page 28 of our brief as authority but the Cimorelli case did not hold that or mean that at all.

The Cimorelli case held that if the railroad had the right of control of the details of the work, they then did not even have to exercise acts of control for the contractor to be held not independent.

Throughout the opinion of the Court of Civil Appeals, they violated the rule laid down in this -- by this Court to consider only the evidence favorable to the petitioners and the inferences therefrom and determining whether there is jury issue.

Instead, they looked at the evidence favorable to respondent and the inferences therefrom and held as a matter of law that the Nichols Company was not an independent contractor.

We feel that there is no question that there was a jury issue and on that point, we would ask that this case be remanded for a jury trial of the issues of whether Nichols was an independent contractor.

However, I believe also that there are enough factors in this case where this Court can hold as a matter of law that Nichols was not an independent contractor.

We be -- believe first that Nichols was not an independent contractor because this maintenance work was a non-delegable duty of the railroad to perform either by their own maintenance man or by others but it's their statutory duty by the federal statute and the state statutes.

That plus the fact that the effect of this contract was to permit the railroad to have this work perform -- this non-delegable work perform with complete indemn -- indemnity to it and therefore exempt itself from liabilities under the Federal Employers' Liability Act.

There is direct authority for that proposition in the case -- in the Erie case cited on page 41 of our brief.

Now, the Texas court opinion on that point attempts to do a way with the argument by labeling the maintenance work as special or extraordinary using the terms of the witnesses for the respondent.

However, the only case they cite for that is the Norman case cited on page 23 of our brief.

And in the Norman case, every issue, that was -- that is involved in this case was stipulated in favor of the railroad by count.

For instance, in the Norman case, they stipulated that the contractor involved in that case was really an independent contractor.

They stipulated that the contract was in fact not made to evade or exempt the railroad from the liabilities of the Act and they also stipulated that the 1939 amendment to the Act should not be considered with reference to determining who were employees of the railroad.

We submit that the use of the adjectives, special or extraordinary, cannot possibly change the fact that this was maintenance work imposed upon the railroad by statute as a matter of law as a duty not to our deceased but to the public that they had to maintain it and calling it special grouting work or extraordinary work doesn't change it.

It was maintenance work.

There is no doubt about it.

It had to be done either by grouting or by some other means to strengthen and stabilize and keep the railroad tracks straight.

Justice Tom C. Clark: What is grouting?

Mr. Harvey L. Davis: Grouting is the pumping of this cement mixture under pressure into the roadbed.

Justice Tom C. Clark: It's not the man that we see the Mexicans (Inaudible) working along the railroad, it's not that?

Mr. Harvey L. Davis: Well, Mr. Justice Clark, I'm not sure.

I'm -- I'm not familiar with -- with all the working aspects but if you see a cement mixture alongside of the track with common laborers inserting these things in the track under the directions of the -- of the railroad maintenance employees, it probably is grouting.

Justice Tom C. Clark: All right.

Mr. Harvey L. Davis: But --

Justice Tom C. Clark: It's done with machines, I take it.

Mr. Harvey L. Davis: In machine.

Now these machines, hydraulic mudjacks are ordinary machines used in highway construction.

There's nothing special about them.

It doesn't require any skill to operate them.

All of which we believe indicates that they could have had this maintenance work done by their own employees at the chores.

The only thing in the record that indicates that there is any skill was the pattern for the placing of the points and these were laid out in the engineering department of the railroad and also Inspector Slaton marked these points for the man to insert the hydraulic pressure.

Justice Charles E. Whittaker: May I ask (Inaudible)

Mr. Harvey L. Davis: No I don't believe we have any cases.

There are some -- there are some other state courts that have held that they are non-delegable and there is -- there are two federal cases that have held precisely that they're non-delegable.

The -- one --

Justice Tom C. Clark: (Voice Overlap) --

Mr. Harvey L. Davis: -- of them is the Mark case.

Justice Tom C. Clark: (Inaudible)

Mr. Harvey L. Davis: I -- I don't know.

Now, on that point, the respondents in their brief say that the record shows they never have done it and that they always know other railroad driver have done.

However, the reference in record that is made is about two pages of testimony dealing with pole driving rather than grouting and all of their statements about the history of grouting really referred to pole driving.

There has been an error on the exact testimony there.

Justice William J. Brennan: Are you using non-delegable in the sense that it's unlawful for them the contract out the billing (Voice Overlap)?

Mr. Harvey L. Davis: No.

No, in the sense that it is their statutory duty to see that it is performed.

Justice William J. Brennan: So that if it's performed by an independent contractor and some third party is injured, it's no defense that it was done by an independent contract?

Mr. Harvey L. Davis: That plus the fact that they cannot exempt themselves from liabilities for having it done by immunity-indemnity such as they've tried to do here.

Justice William J. Brennan: Well, but that -- that requires a finding -- is that under Section 55?

That it was done with the purpose and intent --

Mr. Harvey L. Davis: Yes sir.

Justice William J. Brennan: -- of avoiding.

Mr. Harvey L. Davis: Yes sir.

Justice William J. Brennan: Well, are you suggesting that on this record as a matter of law, we should conclude that this -- that this contracting was done with the purpose and intent of avoiding obligations of the (Voice Overlap)?

Mr. Harvey L. Davis: Yes, I am, Your Honor.

Under the authority of the Hubert case which was decided by this Court --

Justice William J. Brennan: That was very different.

Mr. Harvey L. Davis: Well, the --

Justice William J. Brennan: What -- what is there in this record to support -- perhaps you're right that it may support a jury finding that it was done on that, right?

But what is there to support a finding that that was the reason this contract was -- was entered into to avoid obligation on the federal court.

Mr. Harvey L. Davis: I don't -- I don't claim or say that they may have had the actually intent to exempt --

Justice William J. Brennan: Well, don't they have to under the --

Mr. Harvey L. Davis: I don't think so.

Justice William J. Brennan: -- under the wording of --

Mr. Harvey L. Davis: No, I believe that if it's a necessary operation and practical effect to that.

I think that what he Hubert case says, we quote the language in the Hubert case which says that --

Justice Hugo L. Black: Which part of Section 51 are you relying to?

Mr. Harvey L. Davis: The part that provide for the employees of the railroad --

Justice Hugo L. Black: And the duty on the part of the railroad to take care of his car and engines, appliances, machinery, truck, roadbed, works and so forth.

Mr. Harvey L. Davis: Yes, sir.

Yes, sir.

Justice Hugo L. Black: That was in the evidence, is it not?

Mr. Harvey L. Davis: No, the only evidence was the testimony of respondent and witnesses that they didn't -- it was -- they didn't make the contract to -- to get around the Act.

We don't have any evidence as to what their actual intent was but the combination of the non-delegable duty being performed over contract where the railroad can have no liability whatsoever for their maintenance work that they have to do.

The necessary and practical effect of the contract is to exempt them from any liabilities under the Act.

Unknown Speaker: (Inaudible)

Mr. Harvey L. Davis: Well, no.

I believe if this Court says and hold that this is non-delegable work and that the effect of the -- of the contract is to completely indemnify the railroad and the performance of that work.

And Section 51 also says that they are to perform it that it could be held so.

However, I would like to approach -- give another approach as to the possibility of holding the Nichols Company, an independent contractor as a matter of law and that is on the analogy of the Sinkler case decided in this Court last year.

Baker was doing the railroad work here as part of the unitary enterprise and he was exposed to all of its inherent danger just as other maintenance workers were.

And therefore we believe he should be classified as an employee of the railroad under the Act.

Now, in the Sinkler case, you consider the accommodating scope of the word agent.

Here, we think you should consider the accommodating scope of the word employee.

In the Sinkler, the railroad was held liable for the negligence of a truly independent contractor because that independent contractor was engaged with them in a common enterprise.

Here, Nichols and Baker and the other employees were engaged in the railroad in a common enterprise, maintenance work.

And in this case, it is the railroad itself who is negligent.

In the Sinkler case, it was the independent contractor who was negligent.

And further in this case, the railroad maintained the control and the right to control these workers.

That was not done the in the Sinkler case.

Justice Charles E. Whittaker: (Inaudible)

Mr. Harvey L. Davis: Right, Your Honor.

No question that he -- but he was an employee.

But the question was, was this independent contractor an agent of the railroad?

Justice Charles E. Whittaker: (Inaudible)

Mr. Harvey L. Davis: Right.

I think that theory is sound and I think it's just as sound to say that because he was doing this maintenance work, shoulder to shoulder with the rest of the employees of the railroad that for the purposes of the Act, he should be considered an employee also.

We believe that the movement of the trains and maintenance work are equally as much the railroad work.

Therefore, in conclusion, I would like to point out these factors whereby this Court may hold that Baker was an employee of the railroad as a matter of law.

He was doing the railroad work.

He was exposed to all of the inherent risk of a railroad worker.

He was doing a part of the railroad unitary enterprise.

The work was a franchise obligation.

It was non-delegable.

They had to have it done.

The necessary operation and effect of the contract between Nichols and the company was to exempt the railroad of some of its obligations under that and the details of the Act were actually controlled by the railroad -- details of the work, pardon me.

Justice William J. Brennan: Apart from your (Inaudible)

Mr. Harvey L. Davis: Well, that's our -- that's our main and first argument.

Justice William J. Brennan: (Inaudible)

Mr. Harvey L. Davis: Yes, that's our first argument.

Justice William J. Brennan: (Inaudible)

Mr. Harvey L. Davis: Right.

That's right.

However, we are also urging that he is an employee as a matter of law.

I will reserve the rest of my time for rebuttal.

Chief Justice Earl Warren: You may.

Justice Hugo L. Black: Suppose he is not an employee, what would you say about any other words (Inaudible)

Mr. Harvey L. Davis: No the Act -- the Act says he should be an employee.

Justice Hugo L. Black: As an officer, agent or employee?

Mr. Harvey L. Davis: Well, agent would do but we believe being a common labor that employee best fits his category.

The Nichols Company might be contained --

Justice Hugo L. Black: You're doing something for them that the statute requires them to do --

Mr. Harvey L. Davis: Right.

Justice Hugo L. Black: -- arguing them?

Mr. Harvey L. Davis: Yes.

Thank you.

Chief Justice Earl Warren: Mr. Case.

Argument of D. L. Case

Mr. D. L. Case: Mr. Chief Justice and Honorable members of the Court.

I would like to call the facts to the Court's attention before going into the question of law.

Thus, the evidence of this case shows that the respondent entered into a contract in writing with the Nichols Company as a result of advertising four bids.

Two bids were received and the bid of Nichols was accepted by respondent.

The deceased was an employee of the respondent.

The testimony is uncontroverted.

That respondent hired its own employees including deceased, told them when to go to work or come to work, when to take off for lunch, when to quit for the day, paid their salaries or wages, withheld for social security and then all the other things that are usual and customary in an employer-employee relationship.

The history of this case is that it has been tried for the jury twice.

As the Court knows in Texas, our practice is to submit cases to the jury on special issues.

In both cases, the jury convicted respondent of certain acts of negligence approximately causing the death and in both cases convicted the deceased of certain acts of negligence approximately causing his death.

Petitioners seek the benefit, I assume, Federal Employers' Liability Act in order to get the benefit of the comparative negligence.

Now, as I view the petitioner's argument, their first approach is that the work in question was non-delegable.

Chief Justice Earl Warren: Mr. Case -- Mr. Case, before you get into the law --

Mr. D. L. Case: Yes, sir.

Chief Justice Earl Warren: -- would you mind commenting on -- on the argument of counsel to the effect that this contractor had the right to or not the contractor but an assistant engineer of the railroad company had the right even to discharge the contractor that he not only had the right to but he did direct to both the contractor and his work in the manner in which their -- their work was done.

Mr. D. L. Case: Yes, Your Honor.

Chief Justice Earl Warren: And all of those other things that are -- are in there.

You didn't mention those in your statement of facts and I -- I think it's rather important to be considered.

Mr. D. L. Case: Yes.

I'll be glad to add immediately, Your Honor.

The contracts did not spell out in detail itself the exact work to be done.

That is it didn't say between mile post one and mile post ten you can do this grouting.

It gave the general limits.

The plans and specifications that were set out with the invitations to bid did give into a considerable more detail and work to be done.

Now, the contract on its face says that the contract of Nichols shall occupy the status of an independent contractor and not to be a subject to the detail control of the respondent.

The testimony is undisputed that the respondent specified in the contract and in the invitations to bid, the general limits within which the work would be done.

The work was not done continuously and consecutively throughout those limits.

Respondent's engineering department determined the areas of unstable tracks and advised the contractor of the areas in which the work was to be done.

Now, before I forget it on the question of the right to discharge the contractor as well, simply, there's no provision in the contract to that effect and under the law of our State, he has reasonable time within which to do the work and a contractor is not terminable at will.

I think it is a misstatement of the law by the petitioner as to the contract as being subject to being discharged at will.

Now, as to the manner in which the grouting is done, I think that the petitioner misconceives the actual manner in which the work is done and that that leads to some confusion as to the exercise of control.

It was the obligation under the contract for respondent to select the areas to be grouted and to advise the contractor of those areas.

Now, apparently, petitioner conceives of grouting as being in the nature of an Easter egg hunt to seek out a particular water pocket here and one there and inject, excuse me, and inject the mixture in only those parts.

The record does not bear that out.

The limits of unstable track are specified by the engineering department and are designated to the contractor and within those limits, the embedment are right away as fill solidly with the material.

It's not a matter of finding a little spot here and one across the track over there but within limits of so many feet or yards to build a track that's set forth of the material.

Now, the testimony that the --

Chief Justice Earl Warren: That doesn't mean the whole roadbed in that vicinity is concrete is it?

Mr. D. L. Case: No, that means that you pump as much of the material into the roadbed and that whole section as a roadbed will absorb.

Chief Justice Earl Warren: Yes, for stabilizing the -- the rails -- ties.

Mr. D. L. Case: Yes, that's correct, Your Honor.

Chief Justice Earl Warren: Yes.

Mr. D. L. Case: Now, as I conceive or understand the testimony with reference to the engineering department or to inspect or marking the tracks or ties that was a designation of the area in which the work was to be done and understanding the true nature of the grouting work, I believe the record supports the testimony of the respondent's witnesses that is even the testimony of the petitioner.

And there is no conflict.

That the inspector merely designated the area in which the points were to be inserted in the mixture pumps as distinguished from saying bring it over here, here is the spot and here's the spot over here.

Now, as far as, I believe the points of testimony also that respondent's inspector had told them to move or at what distance rather to set the machines with reference to the tracks right away.

Under our statutes in Texas, there is a minimum distance of clearance required for any obstructions adjacent to a track and certainly, any instructions that the inspector gave in that connection were with regard to safety in the normal operations of respondent's operations.

Now, as far as the law is concerned, this Court and the other federal courts have recognized that particularly in Bond against Railroad that the giving of necessary instructions or information and the inspection of the progress of the work to see that the work is done in accordance with the contract, does not constitute a taking over of control or test of control so as to transform the otherwise independent contractor into an employee.

We submit that the evidence relied upon by petitioners is nothing more than that character of information which the contract called upon respondent to give the petitioner and that character of supervision or surveillance as it had arrived to maintain to see that it got what it bargained for.

So we say that there was no jury issue on the correct -- the actual exercise of the right of control.

But in addition to that, we say that it is not the exercise of the right of control which is important or controlling.

It is the right of control.

The contract itself spells out the rights and duties of the parties.

It is the right of control and not the exercise of control as the Court said in Bond against Railroad and that we submit to Your Honors that that is sound law for this reason.

The relationships of the parties are entered into solemnly by written contracts.

They tried to fix their respective positions.

They say who shall have the right of control and who shall not.

If because some -- some particular employee of the railroad on some occasion make some suggestion or give some instruction whether authorized by his employer or not, to an employee of the contractor, if that by it said changes the whole relationship then there can be no --

Justice William J. Brennan: Well, wouldn't that depend or would that depend on the extent to which it was done.

For example, notwithstanding the language of this -- of the agreement between the railroad and the contractor if in fact all the directions of the method and manner of doing the work in terms of an ordinary foreman employed by Nichols would provide that direction, were provided by some railroad employee.

I don't suppose it at least be a question of such control that a jury might find the petitioner here was an employee of the railroad.

I'm not suggesting that's this case --

Mr. D. L. Case: Yes.

Justice William J. Brennan: -- but it could be, could it not?

Mr. D. L. Case: As I have conceived it, it may be evidence that the contract is not what it says on its face than it is and it may be evidence that the contracts or written contract was entered into for the purpose of evading the --

Justice William J. Brennan: Well, as a part from that even if it were not, even for another door.

They entered into the contract and then whatever may be the circumstance, the actual direction and control of the manner of doing the work is assumed by a railroad employee rather than by a Nichols foreman or supervisor.

Mr. D. L. Case: It may mark the notification of the contract if --

Justice William J. Brennan: Well, wouldn't that -- wouldn't that have a bearing on the -- on the fact question whether he was or was not an employee of the railroad?

Mr. D. L. Case: I don't believe that it would, Your Honor unless it is a case of an oral agreement so that the acts done show what the agreement was or unless it may be evidence that the written contract was merely a sham or a substance of that nature.

I think that the parties --

Justice William J. Brennan: I don't quite understand why it has to be a sham.

Mr. D. L. Case: Well --

Justice William J. Brennan: However, your formula -- formulate the way you say it.

Now wouldn't there be a fact question than in any event under the standard for determining employment relationship which this Court said down in Robinson?

Mr. D. L. Case: Well, I believe the Bond case as it is the right of control and not the Act.

Justice William J. Brennan: Which case?

Mr. D. L. Case: Bond against Railroad, cited in --

Justice William J. Brennan: The other case in this Court?

Mr. D. L. Case: Yes.

Yes, Your Honor and I'm relying on that case and other similar to it.

And I take it that otherwise, if by an isolated answer even (Voice Overlap) --

Justice William J. Brennan: -- that's what you say this record shows that in any event, if any railroad employee had anything to do with directing how this grouting was to be done, that was true only in isolated instances?

Mr. D. L. Case: I say not in isolated case, Your Honor.

I don't think the record shows how many times whether it was once or every day or several times a day when I say that the railroad employee did was to give information as to where the work was to be done and to see that the railroad got the job that it contracted for and that it amounts to nothing more than that.

Justice Potter Stewart: Inspection, really.

Mr. D. L. Case: Yes, that's correct, Your Honor.

Chief Justice Earl Warren: Mr. Case, may I -- may just ask a question to see how far your argument goes?

Suppose we change the facts of this case just a little.

As I -- as I understand that these men were working at this grouting on the railroad tracks and a train passed and through the negligence of somebody injured the deceit or killed.

Now, suppose that instead of him being injured, the train was wrecked and the train crew itself was -- was injured and it could be traced directly to this contractor, the negligence that caused it.

Would the railroad be liable to those -- under the FELA?

Mr. D. L. Case: I think to its own employees, it has a non-delegable duty to maintain a safe place in which they are to work.

Chief Justice Earl Warren: All right.

Mr. D. L. Case: And that your answer is that -- the answer to your question is that -- I'm not familiar with a particular case but it maybe that the railroad would be liable.

Chief Justice Earl Warren: Yes.

Well --

Mr. D. L. Case: I suppose under the Sinkler case that the railroad would be liable.

Chief Justice Earl Warren: Well then if it is -- if it is a non-delegable responsibility for that purpose, why wouldn't it be for this other -- that -- I just want to get the distinction between the two.

Mr. D. L. Case: Well, I can answer Your Honor only by -- in this manner that it has never been held insofar as I know that a railroad owes a non-delegable duty to its employees to perform work of this character only by its employees.

In Dougall against Spokane Railroad, certiorari denied.

It was specifically held that the railroad does not have a non-delegable duty to perform work only by -- if that work was the cleaning of the embankment and work -- generally out doing work held that it -- there was not a non-delegable duty to perform that work only with its own employee so that there could not be an independent contractor relationship in any event.

Chief Justice Earl Warren: The maintenance of track seems to be such a fundamental thing that I would imagine if anything was non-delegable, it would be keeping the roadbed in such condition position that it could be traveled with safety.

Mr. D. L. Case: Well, in the Dougall case, it was as far as I can tell from reading the records substantially, just ordinary maintenance.

Now, I would like to reply to Mr. Davis in that connection about whether this is ordinary or extraordinary and what significance it's has.

Justice Hugo L. Black: I wonder if it would bother you.

I --

Mr. D. L. Case: Not at all, Your Honor.

Justice Hugo L. Black: I don't want to use your time but would you mind telling me precisely how you find from this record this man was injured and what caused it?

Mr. D. L. Case: How I feel?

Justice Hugo L. Black: This man here in this case.

Mr. D. L. Case: I feel that it's his own failure to keep a proper lookout for his own safety was the cause of it.

Justice Hugo L. Black: What -- what about his injury?

Mr. D. L. Case: He had his back turned towards the oncoming train.

It is true there were two trains passing at about the same time in the vicinity of where the accident occurred.

This was a double track.

And he apparently had his back turned to the train which struck him.

He was at a safe distance from the track if he had remained there rather than looking to his rear before he turned and walked on to the track, he obviously walked on to the track and was killed.

Justice Hugo L. Black: Now, what do you understand is the evidence -- could be found from the evidence was the plaintiff's version of what caused him to be hurt?

Mr. D. L. Case: The plaintiff, as I understand the case, relied on numerous acts and his pleadings and then they requested the issues which he request to submit.

He relied on speed, failure to give warning by whistle or other signal.

And I'm not certain of this but he may have claimed that the dissident's attention was diverted by the train coming from the opposite direction on the opposite track but in essence, his claim is that the railroad engine crew failed to keep a proper lookout, fail to warn him and that's about it and perhaps speed.

Justice Hugo L. Black: Nothing in connection with the way the track was at the time of the accident.

Mr. D. L. Case: That's correct.

That was assessed as though it were an ordinary crossing case as far as the acts of negligence are that they were allowed.

Justice William J. Brennan: Well -- I though -- did the jury find here those negligence of the railroad and negligence of the deceased.

And you don't question those findings here, do you?

Mr. D. L. Case: No, I don't question at all.

Justice William J. Brennan: No.

The only issue before us is whether he was an employee.

Mr. D. L. Case: That's correct.

Justice William J. Brennan: And if he was then I gather he'd be what, entitled to restatement of this verdict, is that it?

Mr. D. L. Case: If (Voice Overlap) if he were an employee, you mean as a matter of law?

Justice William J. Brennan: Well if he was -- as far as there's a basis upon which a legally finding may be sustained of employment and then there's no issue of negligence or his negligence or the railroad's negligence to be litigated again, is it?

Mr. D. L. Case: I think that there has been no submission of the issue submitting the theory of comparative negligence.

Justice William J. Brennan: I see.

Mr. D. L. Case: And in any event that the case, if reversed, it would have to be reversed and remand it for this trial.

Justice William J. Brennan: Oh, I -- on the issues of negligence also?

Mr. D. L. Case: I think so, in order for the jury to be able to compare the negligence otherwise, you'll see it hardly how the jury could file a percentage of negligence.

Justice William J. Brennan: Yes.

Mr. D. L. Case: On the delegability of this work, I would like to return to that again for a moment and use the analogy of the railroad contracting, let's say American car and a founder company for box cars.

I think it would hardly be asserted that the railroad couldn't contract with the manufacturer of box cars to build its cars to its best cases and certainly, it owes just as much of an obligation to the public to maintain its equipment as it does on its right of way.

Therefore, on the basis of Dougall and the others cited in our brief and on the basis of factors, I see no reason why the work can't be delegated.

And the very act itself requires the plaintiff to first establish that her decedent was an employee, the word employee being used in its usual and ordinary sense.

That is also stated in Dougall.

I believe it's stated in Bond and in Robinson and others cited in our brief.

On this question, so we say that there is no question of non-delegable duty and as far as any evidence of it, there being any purpose or intent or scheme on the part of respondent to evade the provisions of Section 5 of the Act, there simply is no evidence.

I believe counsel for petitioners stated here that he agreed that there was no evidence of intent but says that it comes from the necessary effects of the contract.

I think to say that is to beg the question.

First, he must show that he had an employment status with the railroad otherwise, if the mere fact that you entered into a contract with an independent contractor, and if it's sustained as an independent contract of necessity, he doesn't come under the Act.

In that case, every independent contract would be a scheme or device to evade the Act.

There simply is no evidence of intent and in the case relied upon by petitioners, the Court specifically stated that the alleged employee had the burden of proving employment or proving a scheme or device to evade the provisions of the Act.

The petitioner simply has not met that burden of proof.

And as far as the -- I was going to say something about the extraordinary maintenance character of the work.

I would think the way that got in to this lawsuit is that the petitioner pled in this petition that was extraordinary maintenance.

Apparently, rely -- rely -- that it was ordinary maintenance, apparently relying on the dicta in miles whether it's an old issue of facts, I don't know.

If it was and if there were an evidence whatsoever, raising an issue of the intent on the part of respondent to evade the provisions of the Act then under our procedural rules, the petitioner has waived any right to a jury determination because the rule requires if an issue is not submitted that the person requesting it or desiring a benefit of its finding request such issue and failing to do so waives any determination of the issue.

Justice William J. Brennan: That's the state procedure.

Mr. D. L. Case: State procedure and I submit --

Justice William J. Brennan: (Inaudible)

Mr. D. L. Case: I beg your pardon.

Justice William J. Brennan: (Inaudible)

Mr. D. L. Case: I think so, Your Honor but I think there is nothing you need about it.

It's all gathered in somewhat Rule 51 if the federal rules.

So I think there's nothing.

No advice on it as opposed to the federal procedure.

Justice Hugo L. Black: Do you think there's any more responsibility on the railroad to operate its trains under the Act than there is to maintain its right of way and tracks in good condition?

Mr. D. L. Case: Well, certainly --

Justice Hugo L. Black: Under the Act.

Mr. D. L. Case: Certainly, under the Federal Employers' Liability Act is one inquiring that.

Assume that it does have the non-delegable duty certainly to the public to operate its trains.

And it may be --

Justice Hugo L. Black: Well, what about the maintenance of its train?

What distinction do you draw the Act provide for the negligence of the employees in operating and so forth and provides for the liability of the company of negligence, keeping its engines, appliances, tracks and so forth.

How can you draw a distinction and say that independent contractors and employees -- with the employees of the railroad operating the train but would not be employees of the railroad or agents of the railroad for maintaining the tracks?

Mr. D. L. Case: The only answer that I can give in the fact is historical work -- historical nature of the work.

Railroads historically have operated its own trains.

In this case, there is no evidence that this railroad or any other railroad has historically done grouting work.

It may be that there are certain types of maintenance work or unloading and loading of cars that because of the historical relationship of railroad and employee could not be delegated.

Justice Hugo L. Black: The Act -- the Act itself controls, I suppose, it wouldn't be governed by history or unless it is governed by history, what distinction can you draw between saying that the employee of the independent contractor operating the train, an employee of the railroad, an employee of an independent contractor keeping up the tracks as the law requires, is it not?

I'm not talking about this Section 55 --

Mr. D. L. Case: Yes.

Well, I think it may have a necessary relationship to Section 55, Your Honor.

The cases that have said that have found that it was railroad work and that the people were employees, have a history for example and some of the cases where the work was formerly done by the railroad and valuable facilities were donated by the railroad to the contractor to do the work which was formerly done by the railroad and the contractor was made up largely of the railroad's former employees.

And it's called logic, looking only at one section and not the other, I suppose that there's no basis for a distinction unless it is historical.

That's the only answer I can give.

Is my time over, Your Honor?

Chief Justice Earl Warren: When the red light is on.

The white is five minutes.

Mr. D. L. Case: Now, on the question of applying Sinkler to this case, there is no historical background in the act of Congress or in any of the decisions of this Court.

Justice William J. Brennan: (Inaudible)

Mr. D. L. Case: That's correct.

Justice William J. Brennan: (Inaudible)

Mr. D. L. Case: It was simplified under the Sinkler case that the other railroad was the agent of the defendant.

Justice William J. Brennan: Under the language of the agent (Inaudible)

Mr. D. L. Case: Yes, that's correct and all of the cases historically in this Court and other federal courts.

It definitely established that the word employee is used in its natural, normal and ordinary sense.

And the session such as Robinson holding the foreman porters were not railroad employees, was in existence at the time of the 1939 Amendment and if Congress had intended to extend the scope and coverage of the Act to persons who were not -- would not normally be considered as employees, I assume that it could have done so and would have.

There's certainly no basis for extending it as I can see it in the legislative history.

Justice William J. Brennan: What about Linstead?

Mr. D. L. Case: I beg your pardon.

Justice William J. Brennan: What about Linstead?

Mr. D. L. Case: Linstead.

As I recall, Linstead was the fellow that was taking a --

Justice William J. Brennan: (Inaudible) employees working on (Inaudible)

Mr. D. L. Case: Oh yes, in that case, it was simply a matter of they were doing the acts -- they had loan an engine and caboose and crew to the CNO as I understand the case and they operating under the rules of the CNO and under the supervision of their superintendent.

Justice William J. Brennan: (Inaudible)

Mr. D. L. Case: Lone servant, Your Honor, is what that was.

Justice William J. Brennan: Yes, but they were employees before.

Mr. D. L. Case: Yes, temporary lone to the other.

Justice William J. Brennan: (Inaudible)

Mr. D. L. Case: Yes, that's right.

As a lone service, as I understand it.

My time is up, I'll take it, Your Honor.

Thank you.

I would like to call the Court's attention if I may impose on --

Chief Justice Earl Warren: Yes you may.

Mr. D. L. Case: -- your time to a case which -- in which I understand an application is now pending in this Court which has not been cited by petitioner.

It's a case of Byrne against Pennsylvania Railroad and I don't have the official citation, I have only a copy, photostatic copy of the opinion in the Circuit Court.

Chief Justice Earl Warren: Well, what --

Mr. D. L. Case: A Court of Appeals --

Chief Justice Earl Warren: -- what was the petitioner's name?

Mr. D. L. Case: B-Y-R-N-E --

Chief Justice Earl Warren: Byrne.

Mr. D. L. Case: -- against Pennsylvania that held that a certain person was an employee of the railroad and it will distinguish it by saying that that is a lone servant case and not a case such as this.

I do not have the official citation.

Chief Justice Earl Warren: Is it a federal case or --

Mr. D. L. Case: It's a federal case that was --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. D. L. Case: -- the opinion was December the 16th, 1958 for the Third Circuit.

Chief Justice Earl Warren: Third Circuit.

Mr. D. L. Case: Yes.

Thank you, Your Honors.

Rebuttal of Harvey L. Davis

Mr. Harvey L. Davis: May it please the Court.

I believe probably the Byrne case opinion being officially reported may be waiting on the Court's decision in this case.

Justice William J. Brennan: (Inaudible)

Mr. Harvey L. Davis: The Bond case on the -- on our --

Justice William J. Brennan: (Inaudible)

Mr. Harvey L. Davis: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Harvey L. Davis: Yes, the Bond case, the issue of a jury whether there was evidence for a jury trial was not at all involved, that's our main point here that there was evidence to go to the jury.

That was involved in the -- in the Bond case.

Now, in the Bond case, the Supreme Court held that there was no evidence of control or right to control and that the operations of Bond could be performed without being involved with the railroad's operation.

In this case, it is completely different.

Part of my argument about the non-delegable duty is the fact that the operation here, the maintenance of track is so interwoven with the railroad's operation that the -- that the railroad as of necessity has to have the right to control the detail of the work of these -- of these men.

It's so intimate with their own statutory obligation.

Justice William J. Brennan: I understand that a part from non-delegable is -- assuming that's -- that's irrelevant.

Your insistence is still (Inaudible) exercise of this jury question, isn't that it?

Mr. Harvey L. Davis: Right.

Justice William J. Brennan: Whether or not he's an employee (Inaudible)

Mr. Harvey L. Davis: Right.

Now, counsel for respondent has picked up the evidence favorable to them and said that there was no right of control.

However, it doesn't seem to be any question that there is sufficient substantive evidence here or an inference is there from whereby the issues to the jury -- issues should have gone to the jury to let them decide whether there was any control or right to control.

And also, as far as the exercise of actual control, we don't say that that is the prime and most important element but we do say that there is evidence in this record of actual control whereby the jury could have found as a fact that there was actual control and that is part of the -- of the element of -- of independent contract.

Justice Hugo L. Black: Where did the work have to be done?

Mr. Harvey L. Davis: Pardon?

Justice Hugo L. Black: Where did the work have to be --

Mr. Harvey L. Davis: The work had to be done on the railroad property, on their main line roadbed.

It was maintenance work that had to be done there and it had to be done by the railroad by the statue.

And I don't believe there can be any distinction historically or otherwise between the operation of the railroad and this maintenance work.

And there are four or five cases directly in point where the courts have held.

In Cimorelli, Barlion, Roth, (Inaudible) and Mark cases all have held that these so-called independent contractor employees were employees of the -- of the railroad.

Two of those cases were maintenance cases.

And the Dougall case cited by counsel relied again on that Norman case where all the issues in favor of the railroad were stipulated by the parties.

We also requested an issue on comparative negligence in this case in the trial but the Court refused to submit.

The Court in fact kept every aspect of the federal act from the jury and -- my time is up.

Chief Justice Earl Warren: You may finish your statement.

That one --

Mr. Harvey L. Davis: Well --

Chief Justice Earl Warren: -- that one statement.

Mr. Harvey L. Davis: I -- I was just going to start on something new.

So my time is up.

Thank you.

Chief Justice Earl Warren: All right.