MAGENAU v. AETNA FREIGHT LINES

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Argument of Harry L. Shniderman

Chief Justice Earl Warren: Number 439, Jackson D. Magenau, Administrator of the Deceased of Norman Ormsbee, Jr., Deceased, Petitioner, versus Aetna Freight Lines, Inc.

Mr. Shniderman you may proceed.

Mr. Harry L. Shniderman: The jury awarded petitioner $76,400.

The trial court refused to set the verdict aside.

The Court of Appeals reversed on the ground that the Pennsylvania Workmen's Compensation Act provided the exclusive remedy.

In reversing, the Court of Appeals relied on Pennsylvania state practice as to the functions of these reforms by a court and jury in determining whether there was an employment relationship covered by the Compensation Act.

This procedure was in conflict with Byrd versus Blue Ridge Rural Electric Cooperative Inc., and therefore we maintain that the jury verdict should be reinstated.

The petitioner brought this suit as administrator on behalf of Norman Ormsbee Jr.'s widow and three children.

Ormsbee, a young man of 20, had been killed while riding on a truck owned by a man named Fidler.

Fidler had leased the truck complete with driver to the respondent.

The driver Schroyer had picked up a load of steel and had proceeded on what was to have been a 350-mile journey.

Because of a combination of very unusual circumstances, what was to have been a 20-hour trip was protracted for a seven day period, at which time Schroyer had not yet reached his destination.

Among other things Schroyer had encountered grave mechanical difficulty with the truck, and so he asked petitioner's decedent, Ormsbee, whom he had casually met in a tavern to accompany him for the balance of the trip in exchange for a promised payment of $25.

Now it was contrary to the policy of both, Fidler the lessor, and the respondent to permit anyone to ride on the truck other than the driver.

Ormsbee had training as a mechanic, which might have been of help in the event of the feared breakdown of the truck, but the truck crashed about five hours after Ormsbee joined Schroyer and both men were killed.

The brakes of the truck were extremely defective.

The evidence establishes that this defective condition resulted from the wanton negligence of the respondent.

The law of Pennsylvania is that a defendant is liable to a trespasser only for wanton negligence.

But if Ormsbee was properly present on the truck, by virtue of the emergency, the respondent would be liable even for ordinary negligence.

The respondent vigorously contended that Ormsbee was a mere trespasser.

Because of the doubt as to Ormsbee's right to be on the truck, the jury was asked to answer four special interrogatories, as well as to return a general verdict.

The jury found that there had been wanton negligence.

It also found in answer to interrogatory number one, that Ormsbee was properly present on the truck, which meant that recovery could be had even for ordinary negligence.

Thus the jury found in fact that Ormsbee was not a trespasser.

Now the precise issues tried were not framed exclusively by the compliant and answer.

They were elaborated on both sides at pre-trial, as is pointed out in the record at page 208 A of the trial judge's opinion.

Now as a result of this elaboration of the issues, there evolved respondent's alternative affirmative defense, that this cause of action was barred by the Compensation Act.

Now this suit is barred by the Pennsylvania Workmen's Compensation Act only if two circumstances are both present.

First this suit is not barred unless Ormsbee was the employee of respondent, rather than say of Fidler.

Second, even if Ormsbee was the employee of the respondent, this suit would not be barred if the employment was, in the words of the statute, casual and not in the regular course of the respondent's business.

Such temporary employees are simply not covered by the Compensation Act.

Now the respondent did not seek a jury determination of either of these two questions as to Ormsbee's employment status, although both had to be resolved in its favor in order to establish what it concedes is an affirmative defense.

The trial court stated to counsel before submitting interrogatory number one that he was purposely refraining from asking the jury to decide the employee issue, which he considered one for the Court.

This is what the trial court stated at page 169 A of the record in commenting on interrogatory number one.

You notice there I refrain from saying just what his status is.

I don't think it is necessary to have the jury find whether he was employed or not.

I think that is a question for the law, we might have to look at that afterwards, it depends on what you think of it.

Justice John M. Harlan: What page is that on?

Mr. Harry L. Shniderman: 169 A of the record Mr. Justice.

The respondent asked of a judge for a binding instruction, that if the jury found that an emergency existed, which justified Schroyer in hiring an assistant, the verdict must be for the respondent.

The respondent thus tried to have the Court bind the jury without instructing the jury to consider or decide whose employee Ormsbee was or whether the employment was in the regular course of the respondent's business.

When this request for a binding instruction was refused, the respondent made no effort to obtain an instruction which would have permitted the jury rather than the Court to determine the employment status question.

Since this is important it should be stressed that the jury was never asked to consider whether Ormsbee was respondent's employee?

Further the respondent made no request that the statutory language, regular course of business ever be presented to the hearing of the jury.

Finally, the judge was not asked to present to the jury any language equivalent to regular course of business, such as the language that has been developed in the Pennsylvania decisions and which was quoted by the Court below.

Justice John M. Harlan: Do you agree that under Pennsylvania law these issues were not for the jury?

Mr. Harry L. Shniderman: There is support for what was done in this case, yes.

Justice John M. Harlan: Under Pennsylvania law?

Mr. Harry L. Shniderman: Under Pennsylvania law.

Justice John M. Harlan: Their claim is here that notwithstanding the Pennsylvania practice (Inaudible)

Mr. Harry L. Shniderman: As decided by the Byrd case of the last session of this Court.

Justice John M. Harlan: (Inaudible)

Mr. Harry L. Shniderman: Yes.

Justice Charles E. Whittaker: Mr. Shniderman, do you contend that the conclusion as to whether Ormsbee was an employee was for the jury or just the finding of facts from which that conclusion of law would follow?

Mr. Harry L. Shniderman: The drawing of the necessary inferences from the facts is a function for the jury, not the conclusion of law, but Your Honor the question of labeling the proper drawing of inferences, which is a jury function, cannot be assumed by the Court by calling it a conclusion of law or a question of law.

Justice Charles E. Whittaker: I understood that here, under interrogatory number one, the Court asked the jury under the -- this follows, under the evidence in this case, do you find that an unforeseen contingency arose which made it reasonably necessary for the protection of the defendant's interests, that the driver Charles Schroyer engaged the decedent Ormsbee to accompany him for the reminder of the trip and the jury answered yes.

Now is that not right?

Mr. Harry L. Shniderman: The jury thus found that Ormsbee was not a trespasser.

Justice Charles E. Whittaker: Well --

Mr. Harry L. Shniderman: The jury was not asked to consider or decide the employee question.

The Court at page 169 A of the record expressed that to be his intent.

There is nothing in the interrogatory which deals with regular course of business or which determines these employee questions.

Justice Charles E. Whittaker: Now that, you maybe all correct in this, but it is -- that's a matter of argument.

It is true or is it not that the jury found the facts by answering yes submitted in question, interrogatory number one.

Mr. Harry L. Shniderman: They found that he was properly present on the truck, yes Your Honor.

Justice William J. Brennan: Mr. Shniderman what Workmen's Compensation Act (Inaudible) for this respondent (Inaudible)

Mr. Harry L. Shniderman: No it would not.

Justice William J. Brennan: As I understand you in answer to Justice Harlan the question of whether Ormsbee was (Inaudible) Pennsylvania cases --

Mr. Harry L. Shniderman: The drawing of these inferences as to whether or not the Workman's Compensation Act is a defense seems to be there is support in the Pennsylvania cases for what was done so clearly in this case.

We are not arguing that this Court was wrong, that the two courts below were wrong in their application of Pennsylvania practice.

If of course they were wrong that would simply make the error more grievous.

Justice William J. Brennan: That is not purport of my inquiry?

Mr. Harry L. Shniderman: I see.

Justice William J. Brennan: My fault, what I was trying to get at is this, if there is an issue in the case whether Ormsbee is an employee of Fidler or of the respondent, if this case were tried in the Pennsylvania courts by whom would that issue be determined?

Mr. Harry L. Shniderman: Well first of all if there was -- this Pennsylvania practice was largely derived -- is largely as far as I can see derived from practice before the compensation board itself, where the compensation board might make a finding on that specific point.

If it arose in a negligence case, it is conceivable that this issue as to -- which presents a direct conflict, based on a conflict of testimony could be put to the jury.

But it certainly was not here and generally seems to be just decided by the Court, as we have shown in various cases we have cited.

They simply take this function and label it a question of law which they say is open to review, all of which is compensation board language and decide this question themselves.

Justice William J. Brennan: Do you suggest on this record that Judge Wilson may have said that there is no issue on the employment in the case for the purposes of the Workmen's Compensation Act?

So it's on the record if Ormsbee was an employee of anyone, he could only be an employee of Fidler, in which case the defense in workman's compensation would not have been available to the respondent?

Mr. Harry L. Shniderman: I am not suggesting that, perhaps that is what he was doing, but he was simply saying from the very start of this record, there is nothing in this record which would indicate anything to the contrary from the opening page, that he was not going to put this employment question to the jury, that it was a question as he put it a question of the law for the Court.

Now after the jury returned the verdict in favor of the petitioner, the respondent moved for judgment N.O.V or for a new trial and these motions were denied.

And on appeal the Court of Appeals reversed relying on Skinner, a secondary treatise on the Pennsylvania Workman's Compensation Act, dealing with state court practice and the Court relied on Skinner for its right to determine the employee issue as a question of law, which it stated was open to review.

As you can see in a federal court case the state practice as to what is or is not open to review, was hardly an appropriate thing for the Court of Appeals to have been dealing with.

Now the Court of Appeals correctly defined in regular course of business as depending upon whether the employment was an ordinary operation of the respondent, or in the words of the Callahan case cited by the Court, the normal operations, which regularly constitute the business of the employer.

But the Court surprisingly concluded that since Ormsbee was on the truck, by virtue of the emergency, this put him into the regular business of the defendant, namely transportation of goods by truck.

Now this Court held in Byrd, that in a federal diversity case, the jury decides the fact question of whether there was employment status under the under Workman's Compensation Act, and we have the same question in this case.

The Court of Appeals relied on state practice and labeled the question of Ormsbee status a question of law and under Byrd state practice simply did not apply.

The jury made a special finding in answer to interrogatory one that Ormsbee was properly present on the truck, and trial court had submitted this question as he stated, both before he did it and after he did it, for the very narrow purpose of determining whether Ormsbee was a trespasser.

The judge carefully informed counsel that the interrogatory was not intended to present the employment question to the jury, but the Court of Appeals drew inferences to find that respondent was Ormsbee's employer and that the employment was in regular course.

Now we do not deny that the Pennsylvania practice readily allows the drawing of such an inference as I've already said, where the fact issue is one of statuary coverage.

The state cases cited in our brief show that the Court, with facility, seems to translate into and label the drawings of these inferences, labels it questions of law, but the Pennsylvania practice is certainly not basic for the statutory scheme and so the Byrd decision maybe readily applied.

Now the respondent in its brief presents many ancillary contentions, but the clear thrust of its effort to distinguish Byrd is its assertion that somehow the employment question was fully presented to the jury and was decided by the jury itself in the respondent's favor.

Now since the jury never heard of the Compensation Act as acclaimed bar to the cause of action, never heard of it, the respondent obviously has great difficulty in arguing that the jury could have decided anything with respect to the question, but concretely the jury was never told of a statutory standard that the employment must be in the regular course of the respondent's business in order to come within the coverage of the Compensation Act.

Justice William J. Brennan: This is drawing a distinction between defendant's interests and --

Mr. Harry L. Shniderman: Yes Your Honor.

Justice William J. Brennan: -- course of the defendants' --

Mr. Harry L. Shniderman: And that is what the Court -- that is what the respondent has done in an effort to supply the omission.

The respondent fastens on these words in defendant's interests, which appears in interrogatory number one as Mr. Justice Whitaker read it.

The respondent asserts that these words in defendant's interests are the equivalent of regular course of business.

And from this it would follow, according to the respondent, that the jury made the determination that Ormsbee was employee in the regular course of business because his presence on the truck was in the defendant's interest.

Now there is no support whatsoever in the Pennsylvania cases or in the decision below for this newly advanced contention that regular course of business and the defendant's interests are equivalent expressions.

In the leading Callahan case which was relied on by the Court below, the repair of machinery belonging to the employer, was held not to be in the regular course of a business of the employer, although it was clearly in the employer's interest, couldn't have proceeded with his operation without the repair.

And in the Rocco case again relied on by the Court below, the repair of the employer's restaurant ceiling was held to be not in the regular course of the employer's business, although again it obviously was in the defendant's interest.

If everything in the employer's interests were held to be in the regular course of the employer's business, then clearly nothing would be excluded, and so we think it can be stated with assurance that the employment issue was in fact not determined by the jury.

Now the two questions as to Ormsbee's employment status, both of which had to be decided in the favor of the respondent, were on the record factual questions upon which a jury could have drawn inferences in the petitioner's favor.

First as to the question of who was the employer, the record is replete with testimony that Fidler the lessor maintained active control over the repair and maintenance of his own equipment.

He garaged his equipment, he arranged for its ordinary repair by an independent contractor, even when the truck was on the road, Fidler made special trips to supply the driver with replacement tires, he hired the driver.

He instructed the driver as to the garages to be used on the road for making emergency repairs and he paid the repair bills.

He even told Schroyer whether to -- whether he could proceed in bad weather.

When Schroyer hired Ormsbee in the tavern, he did so because of the eminent breakdown of the equipment, he felt he might need help.

Both Fidler and the respondent had a policy of not permitting riders on the truck and so the trial judge was at first quite dubious about Ormsbee's status as an authorized person on the truck, but he stated that he had been shaken in his initial impression by Fidler's testimony, that he authorized his driver while on the road to engage necessary repair and other services without consulting him.

So it was with a view toward getting help as to tasks that Fidler had kept under his control that Ormsbee was hired.

This pertained to the repair of equipment that belonged to Fidler and did not pertain to the driving of the truck for the transportation of goods, at least a jury could have so found.

Now second, on the assumption that Ormsbee became the employee of the respondent could a jury have reasonably concluded that he was not engaged in the regular course of the respondent's business?

Could it have been concluded that his function was not ordinary or normal, but to the contrary was extraordinary or abnormal?

We believe the answer is obvious.

Ormsbee was not licensed to drive a motor vehicle in Pennsylvania.

He was not hired to drive a motor vehicle, and in fact he did not drive it.

This is not a case where the driver was disabled and an emergency substitute driver had to be found to take this place.

Ormsbee was not engaged in the transportation of goods, and he patently could perform no function with respect to the load.

The truck contained 36,000 pounds of steel.

In the event of a breakdown, it hardly needed protection while repairs were being undertaken.

If a breakdown had occurred presumably Ormsbee would have helped in a mechanical or a related way in meeting the trouble which led to his engagement in the first place.

His contemplated services were the prospective handling of broken down equipment owned by Fidler.

Now even the ordinary repair and maintenance of the truck was not handled by Fidler and certainly not by the respondent.

It was contracted out, this was not even an ordinary function of Fidler, but certainly the testimony shows how far removed from ordinary or normal was the transportation of Ormsbee himself in the emergency.

Ormsbee's transportation was so extraordinary that the respondent was to insist throughout the trial that he was a mere trespasser.

A reasonable inference is that in respondent's normal operation, it provided neither roving mechanics, riding assistants, nor $25 a trip short-haul companions, and since a jury could have reasonably decided one or both of these factual issues in petitioner's favor, it was erroneous for the Court of Appeals to draw its own conclusions in reliance on Pennsylvania state practice.

Justice John M. Harlan: (Inaudible) just had (Inaudible) regular course of business (Inaudible)

Mr. Harry L. Shniderman: Well, first of all I don't think it can't be read that way.

Justice John M. Harlan: (Inaudible)

Mr. Harry L. Shniderman: Well, it's clear that the --

Justice John M. Harlan: (Inaudible)

Mr. Harry L. Shniderman: It's very clear that the Court Your Honor stated that it was relying on Pennsylvania practice as to the function that it was to perform as to the questions that were open for review.

Now I really can't believe that this Court could have seriously believed that in defendant's interests were equivalent words in regular course of business.

I don't think that was within the realm of possibility as anything was in the Court's mind.

That point incidentally was not argued in the brief of opposition to certiorari, it came up rather belatedly in response to our brief on the merits for the first time.

It was a search to find in the words of interrogatory number one, something that was not there, something that the Court itself decided by drawing inferences from the facts of record.

Justice Felix Frankfurter: What do you conceive to be the decision of the -- what did that decide?

Mr. Harry L. Shniderman: It decided Your Honor that the function, that was a jury function to determine the question of employment status.

Justice Felix Frankfurter: That's abstractly or with relation to Workmen's Compensation Act?

Mr. Harry L. Shniderman: It was a Workmen's Compensation Act issue as is this one.

Justice Felix Frankfurter: Well in the Byrd case was the workmen's compensation issue put to the jury?

Mr. Harry L. Shniderman: In the Byrd case it was not put to the jury.

Justice Felix Frankfurter: But it asked to be put to the jury?

Was the case litigated as a workmen's compensation problem?

Mr. Harry L. Shniderman: The issue was not put to the jury.

It was taken away from the jury as you may recall.

Justice Felix Frankfurter: Yes, but the litigation was about the Workmen's Compensation Act.

Mr. Harry L. Shniderman: That was a defense.

Justice Felix Frankfurter: Pardon me?

Mr. Harry L. Shniderman: That was a defense in the case.

Justice Felix Frankfurter: Yes and the question was the jury's relation, the jury's function in relation to a defense.

Mr. Harry L. Shniderman: That is right Your Honor.

Justice Felix Frankfurter: Is that right?

Mr. Harry L. Shniderman: That is right.

Justice Felix Frankfurter: Now in this case is this same here?

Mr. Harry L. Shniderman: The very same case.

We have what is conceded to be an affirmatively defense in this case.

It was conceded and you will see that thing --

Justice Felix Frankfurter: Was anything said about the Workmen's Compensation Act in the Byrd case to the jury?

Mr. Harry L. Shniderman: As far as I know not.

Justice Felix Frankfurter: Not mentioned?

Mr. Harry L. Shniderman: As far as I know not.

Justice Felix Frankfurter: But if you say the issue is that what is the status of employment under workmen's compensation, that claim, that must be put to the jury actually I should think the jury would be told something about it.

So far as -- I have just for the first time read the charge of the jury and you couldn't tell from that the workmen's compensation has anything to do with it.

Mr. Harry L. Shniderman: That is right, that is right, that is the problem.

That's precisely the problem.

That you have -- that the respondent's burden here in trying to urge you to find words somewhere, some concealed meaning in some of these words like in defendant's interest to supply an omission.

As I've said as far as the jury was concerned in this case they never would have known that there was a defense for the Workmen's Compensation Act, and so it's rather hard to say that the jury could have decided anything with respect to the issue.

Justice Felix Frankfurter: And is that -- and where do you go from there in jump to the conclusion or going to the conclusion, that therefore that issue is not on under Pennsylvania law, a part of the statutory limitation or restriction or right, call it what you will, which is -- in other jury's business.

The scope of a state statute, is that to be left to a jury?

Mr. Harry L. Shniderman: On proper instructions as to what the meaning of the statute is, that has been decided --

Justice Felix Frankfurter: Well I mean applying it yes, but as to whether you're within or without a state statute is that a jury question, even a federal court?

Mr. Harry L. Shniderman: It is the function and the practice in the federal courts as you have said in many a case, that there is a question for example of what is an efficient brake, which is the statutory language establishing a cause of action, that the jury is to be instructed fully on what is the test of an efficient brake and then upon such an instructions the jury is to determine.

Justice Felix Frankfurter: It's a very different thing as to the state is, that a state chooses to define for which it does or doesn't give its own state law relief, isn't it?

Mr. Harry L. Shniderman: I --

Justice Felix Frankfurter: A brake is one thing, but whether or not who comes within the category, I can see determining whether a man comes within a category.

Mr. Harry L. Shniderman: Yes.

Justice Felix Frankfurter: But what the category is, is not for the jury?

Mr. Harry L. Shniderman: Well, whether a man comes within the category is what you have here.

The cases Mr. Justice that we cite at page 17 of our main brief show that all questions of this kind what is the course of employment, whether a person is a member of a crew, whether there is an efficient handbrake, all these questions are to be put to the fact finder whether it be a board or the jury, to be resolved by the jury.

So in this case, the jury should have been told about reasonable course of business, should have been instructed that this means the normal operation which regularly constitutes the business of the employer and the jury should have been asked to find.

Justice Felix Frankfurter: Now suppose under state law that's to be done by an administrative agency.

Mr. Harry L. Shniderman: Yes Your Honor.

Justice Felix Frankfurter: And you then bring a diversity suit, that means you can try that in litigation rather than the administrative agency before the jury, is that your contention?

Mr. Harry L. Shniderman: Well I don't see -- I don't quite see your problem.

Justice Felix Frankfurter: Suppose under state law --

Mr. Harry L. Shniderman: Yes.

Justice Felix Frankfurter: -- whether a man is within or without, must be determined by an administrative agency, does diversity jurisdiction, I'm asking and this is (Inaudible), does diversity jurisdiction permit or imply that in this regard, administrative determination of these questions and bring it before a jury in the federal court.

Mr. Harry L. Shniderman: Well we don't have the case of whether the issue would be res judicata because (Voice Overlap)

Justice Felix Frankfurter: I am not talking about res judicata.

I'm taking about the process for determining --

Mr. Harry L. Shniderman: Yes I would think --

Justice Felix Frankfurter: -- whether they should come within or without a state law, the state law says you must bring it before an administrative agency, if you've got diversity can you disregard it?

Mr. Harry L. Shniderman: Yeah, we don't have that case here, but I would say that it is a function for the Court, I mean for the jury.

Justice Felix Frankfurter: But my question is, whether the (Inaudible) whether it's for jury or for Court, if a state says we are going to give certain relief and that's exclusive relief in this state, and it must be fought out before an administrative tribunal, can you have diversity transfer it to a court proceeding and a jury proceeding?

Mr. Harry L. Shniderman: Well I don't know the answer as to whether or not the case would lie, but that is not our case.

Justice John M. Harlan: Could I ask you one question before you sit down?

Mr. Harry L. Shniderman: Yes.

Justice John M. Harlan: (Inaudible) am right in thinking that in order to make this so called diversity you'd have to show that as per Pennsylvania practice under diversity law (Inaudible)

Mr. Harry L. Shniderman: Well if there was some reason to believe that it was some sort of a substantive right –-

Justice John M. Harlan: (Inaudible)

Mr. Harry L. Shniderman: Yes, that contention incidentally has not even been advanced by the respondent.

If there was anything peculiar about the Pennsylvania law, such as in the Tyce case, that would be FELA situation, which would require holding that this a matter of substance.

We cover that in our brief --

Justice John M. Harlan: (Inaudible)

Mr. Harry L. Shniderman: There --

Justice John M. Harlan: (Inaudible)

Mr. Harry L. Shniderman: The Pennsylvania law as to practice and certainly as you point out, is certainly not that clear, but I might add again, that if the two courts below simply misconstrued a Pennsylvania practice entirely, a position that we do not urge, but if this Court were to so find, that would simply, simply make the error even more serious, because not only would they have misconstrued Pennsylvania law but they would then have misapplied Pennsylvania law as so misconstrued in a diversity case to which it had no application.

Justice Felix Frankfurter: Suppose that Pennsylvania law, the word practice is also (Inaudible) tack on (Inaudible) with the game of labels, those Pennsylvania workmen's compensation laws meet all questions arising in under workmen's compensation law, those proceedings in (Inaudible) exclusively to the Court, no jury at all, not the distribution of function between the two, but deal with it entirely through court.

Would you call that just Pennsylvania practice for purposes of the Byrd case?

Mr. Harry L. Shniderman: I would think you would have to find that in order to say that it was substantive, you would have to find some statutory scheme that expressed an intent in a Workmen's Compensation Act, to deal with the jury function where the workmen's compensation question comes up only collaterally, which would be quite a surprising development, because the basic concentration of the Workmen's Compensation Act itself would not be on the question of what is done when the issue comes up collaterally in a tort action, but what is the scope of review that should be prevailing from a decision of the administrative board itself, when that case is taken into court.

Justice Felix Frankfurter: I don't why it is (Inaudible)

Mr. Harry L. Shniderman: I'm sorry?

Justice Felix Frankfurter: I don't quite see you why you minimize a defense under the Workmen's Compensation Act --

Mr. Harry L. Shniderman: I'm not trying --

Justice Felix Frankfurter: -- under Pennsylvania law is something collateral.

Mr. Harry L. Shniderman: I'm not trying to minimize it.

What I am trying to say is that it is not the direct review Mr. Justice of an administrative board that comes into the case as an affirmative defense in an ordinary tort case and to that extent it is -- the issue does arise collaterally.

Justice Felix Frankfurter: But when you say an ordinary tort case, what you are dealing with is a policy of the state that an ordinary tort case should not be subjected to ordinary tort law, but should be subjected to the insurance principles, workmen's compensation.

Mr. Harry L. Shniderman: What I am suggesting is that the Workmen's Compensation Act itself in Pennsylvania, as far as I know in most states, simply does not concern itself with the question of who decides what issue in the tort case, but is concerned only with what is decided by the board and what the scope of review should be from the board decision.

Justice Felix Frankfurter: And you think from that one can derive a policy those issues should be determined, those rights should be determined in a certain way, rather than some other way –-

Mr. Harry L. Shniderman: I think –-

Justice Felix Frankfurter: -- because of the conflict.

There is certainly conflict of the law or of the policy in law, between letting ordinary tort law govern the jury and letting workmen's compensation go.

Mr. Harry L. Shniderman: I think it is --

Justice Felix Frankfurter: That's not collateral (Inaudible) that goes to the very root of the policy of Workmen's Compensation Act.

Mr. Harry L. Shniderman: I think it is theoretically possible to say that in some case, that there is a policy of a state, which is so strong that it should overcome the policy in federal diversity cases, the fact issues are decided by the jury.

So that would pose the clear question of the Seventh Amendment and whether any such state policy could prevail, a question which this Court did not feel compelled to reach in the Byrd case, but which under the suggestion you would have to reach in this case.

Justice Felix Frankfurter: Well isn't that the real question that you supplant tort law by different concepts of law (Inaudible)

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Argument of William F. Illig

Chief Justice Earl Warren: Mr. Illig you may proceed.

Mr. William F. Illig: Mr. Chief Justice may I please the Court.

The petitioner in this case seeks a reversal really on the basis of one decision of this Court, the case of Byrd versus the Blue Ridge Cooperative, in which the majority opinion was written by Mr. Justice Brennan last year.

And I just like to take a half a second to show that the Bryd case was completely different from this in the whole situation so that there won't be any confusion in the Court's mind, because in the first place in the Byrd case the only evidence of statutory employment, which was the issue there, was presented on behalf of the defendant and all of it was withdrawn from the consideration of the jury, and the Court of Appeals decided as a matter of law that the plaintiff was a statutory employee.

Here on the other hand, all of the evidence of petitioner's emergency employment was brought out by petitioner as part of his own case and it was not only all submitted to the jury, but it was submitted in the form of a special interrogatory presented by the court, which the jury answered in the affirmative and the Court of Appeals said, in the words of Judge Goodrich, “Thus the matter turns in the final analysis on a question of fact, that is a sufficient state of emergency to justify the enlisting of another to help assist in the business to be done.

The jury's finding is a forthright answer to a forthright question.

The trial judge who heard all the testimony was satisfied -- satisfied with it.

We do not think on this state of the record that we would be justified in setting it aside.”

And the Court of Appeals in our case adopted the jury's finding of fact and applied applicable principles of Pennsylvania law and held that petitioner's remedies were in workmen's compensation.

Now it's been said that the whole defense of workmen's compensation was an affirmative defense of the defendant, but I think and I believe you will agree when you study the whole record, that a very peculiar situation developed in this case, which was responsible for petitioner developing the whole matter of the emergency employment and not as in the Byrd case, where the defendant sought to show that the plaintiff was a statutory employee.

When you see the complaint you will find that it was not drawn in the terse federal notice type of pleading, but instead it was in a the detailed form followed under Pennsylvania practice and there it was alleged simply that Ormsbee the decedent was a guest passenger of the defendant invited to ride by Schroyer the driver.

There was no reference to willful or wanton conduct, there was no word about emergency hiring, but at pretrial for the first time the petitioner became aware that workmen's compensation was going to come into this case, you will find that mentioned at page 11 of the pretrial notes, and petitioner also became aware that if he were merely an invitee of the driver or a guest passenger, he would be a trespasser as to the defendant Aetna Freight Lines for this reason.

Justice Hugo L. Black: May I ask you a question, you said page 11 of the pretrial?

Mr. William F. Illig: Pretrial notes.

Justice Hugo L. Black: So that is page 11 --

Mr. William F. Illig: No I beg your pardon Your Honor that is not printed in the record there.

The pretrial notes I simply said that's were workmen's compensation first came into the picture.

So what I was going to say was, he knew he would be a trespasser as to the defendant Aetna for this reason and this is important.

Schroyer the driver, and I think it's already been commented upon by Mr. Schneider, had been forbidden to take any rides.

There was a no rider sign on the windshield of the truck.

The ICC regulations forbade riders under those circumstances, therefore if he was a simply rider or guest passenger of the driver, he would be a trespasser as to Aetna and he couldn't recover on the basis of ordinary negligence, but would have to show willful or wanton misconduct, which under Pennsylvania law means a conscious disregard of known danger.

So the petitioner tried his case on two new theories, and I'm bringing this out not because there was any objection to it on the behalf of the respondent at the trial, but to give the background.

First, that if Ormsbee the decedent were a trespasser, the defendant Aetna was guilty of willful or wanton misconduct even though that hadn't been alleged in the complaint, but it had been brought out at the pretrial.

Secondly and more important Ormsbee was an emergency employee of the defendant Aetna.

Now, this is important too.

At that time the petitioner thought he was on perfectly safe ground in bringing the matter of emergency employment into the case as part of his own proof.

Justice John M. Harlan: (Inaudible)

Mr. William F. Illig: There was, they found there was wanton misconduct on the part of the defendant, although the Court of Appeals did not find it necessary to meet that point because of the disposition on the first, because we had contended that there wasn't sufficient evidence of wanton misconduct here to have submitted the issue to the jury under established Pennsylvania law, since there wasn't any showing of a known disregard or conscious disregard of known danger, it was simply a matter of defective brakes.

So as I say, they proceeded to show emergency employment.

For this reason they thought they were safe.

That the petitioner or rather Ormsbee could not be a statutory employee of the defendant Aetna under Pennsylvania law because the accident didn't occur on the premises.

But as Judge Goodrich pointed out in his opinion, what petitioner overlooked was Section 104 of the Pennsylvania Workmen's Compensation Act, whereby emergency employees are included within the definition of employee.

So then the petitioner proceeded to develop all of the facts surrounding how Ormsbee came to be on the truck instead of simply showing that an accident happened, the truck went over the embankment and both men were killed.

He showed that Ormsbee was hired for $25 by Schroyer as an assistant to help him in the performance of his duties which he was unable to perform for the balance of the trip.

The emergency was that Schroyer had, had brake trouble and mechanical trouble and expected more, and he said he needed someone to help him to carry on for the balance of the trip.

This was part of the plaintiff's proof, and this is also a very significant circumstance which hasn't been commented on.

The plaintiff's own proof showed, that Ormsbee the defendant helper or assistant was on this truck not for just a couple of minutes, not in a rescue operation or anything of the sort, but for a distance of over 100 mile from 100 to 125 miles during which this time this truck and its cargo were being moved towards its destination and it was over a period of five or six hours, he was riding there as a helper before this accident happened.

That is a very important circumstance.

Again it was proved by the petitioner's own evidence.

The only dispute at the trial centered around one thing, the respondent took the position that the emergency, that the petitioner was contending was not the type of emergency, which under Pennsylvania substantive law would have given the driver implied authority to hire an assistant, and now at the --

Justice John M. Harlan: May I ask Mr. Illig?

Mr. William F. Illig: Yes.

Justice John M. Harlan: Might there not have been a finding here of implied authority in Fidler's interest?

Mr. William F. Illig: No, I was just going to come to that and I want to say that right now, because as you know the first finding which is the crucial one, the controlling one, the one that the Court of Appeals adopted and used it as the basis of its opinion in applying applicable Pennsylvania law was about the emergency.

The petitioner takes the position that this -- it did not follow from this finding that he was an employee of Aetna the defendant rather than of Fidler, and I believe that is the question Your Honor is asking.

Justice John M. Harlan: Yes.

Mr. William F. Illig: Number one bear in mind that in the complaint it was alleged that Schroyer the driver was the servant, agent and employee of the defendant Aetna.

Aetna was the only defendant sued.

Number two, the only evidence of the hiring which was brought out by the petitioner concerned extra judicial statements of the dead driver Schroyer maybe in this tavern at Waterford to two people in connection with hiring of Ormsbee.

This was objected to on the part of the respondent at the trial because it was hearsay as to the defendant Aetna, but if you look at the record at page 36 A, you find that the plaintiff's -- petitioner's counsel Mr. Gornall urged in support of the admission of that very evidence, that it was statements made by Schroyer in the course of his employment.

Now obviously it couldn't be in the course of his employment for the -- for Fidler, a third party.

Justice William J. Brennan: Now may I just interrupt you right there?

Was not Schroyer in fact hired by Fidler as Fidler's driver?

Mr. William F. Illig: He was hired by Filder that is true.

Justice William J. Brennan: As Fidler's driver.

Mr. William F. Illig: As Fidler's driver, but he was under the control of the defendant Aetna which alone had the ICC certificate.

Justice William J. Brennan: Well now may I ask further, not only was he employed by Fidler, but was there not testimony that Mr. Shniderman referred to that indicate that Schroyer in his operation of the truck took his instructions from Fidler, for example he laid up overnight night as I recall at that --

Mr. William F. Illig: That's true.

Justice William J. Brennan: On Fidler's orders.

Mr. William F. Illig: That's right.

Justice William J. Brennan: And he went there for repairs to certain repair shops --

Mr. William F. Illig: That's right.

Justice William J. Brennan: -- on Fidler's orders.

And there was also -- was it Fidler's testimony that he authorized Schroyer to employ services or something of that kind?

Mr. William F. Illig: That is true, that was in the testimony that in response to a question put by the Court, as to whether Fidler authorized him to employ services and the defendant's counsel didn't hear the question and he said, I didn't get that Your Honor, he said, did you say was the answer servants or services and the answer was only services.

But there was no evidence that Fidler in anyway authorized Schroyer to employee any servants or assistants.

Justice William J. Brennan: What I am -- what puzzles about this is, if in fact there was evidence upon which a conclusion of employment by Fidler rather than by Aetna is required, would the Workman's Compensation Act of Pennsylvania be a defense for Aetna?

Mr. William F. Illig: No it would not.

Justice William J. Brennan: It would not.

Mr. William F. Illig: I wouldn't say that it would, but I -- because I believe that same point was involved in the Byrd case, he had already received workman's compensation from his immediate employer, but bear this in mind Your Honor, at page 174 A in connection with this very point.

When they are talking about this first interrogatory that's going to be submitted to the jury, note what Mr. Knox on behalf of the petitioner said, made it reasonably necessary for the protection of the defendant's interests, namely the hirer, defendant's interest not driver's interests, and then if you get over here to page 184 A.

Justice William J. Brennan: Well driver I gather refers to Schroyer.

Mr. William F. Illig: Schroyer, correct.

Justice William J. Brennan: Well, but it still doesn't -- that's not a concession that it might not have been necessary in Fidler's interest, is it?

Mr. William F. Illig: I believe it is, because the very first -- the wording of the first interrogatory, the first interrogatory said nothing about Fidler, you find that an unforeseen contingency arose which made it reasonably necessary for the protection of defendant's interest, not Fidler's interests, that the driver Charles Schroyer engaged the decedent Norman Ormsbee.

I'd like to point this out further Your Honor that under established Pennsylvania law the restatement Section 79 which is referred to by Judge Goodrich and the Pennsylvania cases, if there is the factual situation where a driver has implied authority to hire an assistant for the protection of his -- in the furtherance of the defendant's interest, that's the employer, and that emergency exists, then as a matter of law, the person employed becomes the servant of the master.

In other words once there is the finding and here the specific question was asked, Fidler was not in this lawsuit.

The question was asked do you find that an unforeseen contingency arose which made it reasonably necessary for him to employ him in furtherance of the defendant's interest and they said yes to this question specifically.

Justice William J. Brennan: But isn't there some merit in Mr. Shniderman's position that the fact that he -- it may have been necessary to employ him in Aetna's interest, doesn't establish that, that employment was in the regular course of Aetna's business there.

Mr. William F. Illig: We're coming to the regular course of business, and I'll take that up right now, but before I leave your question Mr. Justice Brennan, if you will look over here also at 184 A in the Court's charge, this is -- this bears directly on the fact too that he is the employee of the defendant.

The Court says it is a rule, in the middle of the page, it is a rule universally recognized that the relation of master and servant cannot be imposed upon a person without his consent express or implied.

It is upon this exception to the general rule which is quite as well settled as the general rule itself that the plaintiff relies in this case to establish the relation of master and servant under the evidence.

Now notice what he says, “the exception of the servant may engage and assist in the case of emergency where he is unable to perform the work alone, but you have to find an emergency on the road confronting Schroyer that night, that he couldn't go alone and there was reasonable -- in his opinion and it was to be expected in interests of the employer that he had the implied authority, he did have the power to engage an assistant and engaged Mr. Ormsbee to go along with him to complete the trip.”

The only employer that the Court again was referring to was Aetna who was the only defendant sued.

Justice William J. Brennan: Now I've taken too much of your time, but may I ask one more question?

Mr. William F. Illig: Yes sir.

Justice William J. Brennan: I understand contemporaneously with this litigation there was pending a workman's compensation petition.

Mr. William F. Illig: That was filed before the trail began and it is still pending.

Justice William J. Brennan: And in that Aetna has denied that the deceased was an employee of Aetna, isn't that right?

Mr. William F. Illig: They have denied that they were an employee of Aetna and I might say that in that plain petition they filed against Fidler and against Aetna and against Schroyer, in other words they cover the waterfront, there was a pro-forma denial in view of that.

Justice William J. Brennan: Now is that proceeding just stayed pending the --

Mr. William F. Illig: That was simply stayed and it's still open.

Now you have asked the next very important question Mr. Justice Brennan and that is did it follow the jury's finding that he was in the regular course of the defendant Aetna's business.

I'd like to point out first of all that there was nothing that Your Honor said in the Byrd case to the effect that has been argued here that the statutory language had to be submitted to the jury.

In that case, you writing the majority opinion stated that the petitioner was entitled to have the factual elements of the defense submitted to the jury.

Following the argument of Mr. Shniderman it would likewise have been necessary here to submit the question to the jury as to whether the hiring was for valuable consideration, because the words say that, the words of the Act, and yet it was conceded that he hired him for $25.

Now the questions come in is, do we say that this was the regular course of business only because of the use of the words in the furtherance of defendant's interest.

My answer to that is an unequivocal no.

I want to point out that this answer of the jury to this special interrogatory has to be read in the light of the Court's instructions and explanation as required by Federal Rule 49B, and also several cases recently decided by the Third Circuit and I don't believe there is any rule in other circuits to the contrary, to the effect that a special finding must be construed in the light of the instructions given by the Court.

We say that this was a finding that it was in the regular course of the defendant Aetna's business because the circumstances were such as to require the hiring by Schroyer the regular driver of Ormsbee to accompany him for the full balance of the trip for Aetna and assist him in the performance of his duties which he was unable to perform alone.

All of that is impliedly to be read in to this interrogatory submitted to the jury because of the specific instructions of the judge and if you will look at 184 A, which is just before the Court reads the interrogatory, look what he says, in explaining it, at the top of the page, “unless you find in this case, that is emergency arose and it was such an emergency that Mr. Schroyer was unable to perform it alone, that is his duties for the continuance of the trip, because of what has been brought out here, if you accept that proposition that the brakes were bad and that was the type of emergency then he would privileged to take on his assistant Mr. Ormsbee.”

And he -- and then he reads the interrogatory at the bottom of the page and he says the words unforeseen contingency mean the emergency I have just mentioned, the inability of Mr. Schroyer to cope with it alone.

If you think it reasonable the he engaged in assistance, why you may answer the interrogatory number one.

My point in that regard is this, regular course of business is statutory language.

It is not defined in the act.

It is then the subject of judicial interpretation.

One of the tests that has been applied, the factual test that has been applied by our Pennsylvania courts throughout, for instance in the case of Smith against the Coal Company it's not cited in our brief unfortunately, in 86, Pennsylvania superior, Hodger against Walker in 277 PA, is whether a person who is hired, is hired to do the work of a regular employee or is hired to assist a regular employee, those are factual tests of regular course of business.

The regular course of the defendant's business as Judge Goodrich said, and I don't think it can been controverted is transportation of goods by truck.

Here the truck moved towards its destination with this man riding as a helper for a distance of over a 100 miles before the accident happened, over a period of five or six hours, he was there as an assistant ready to help in case of a breakdown, set out flares, help, summon assistance, protect the load, all these were argued by petitioner's counsel as a reason for the emergency and permitting of the hire of the assistant.

Justice William J. Brennan: But isn't this also true Mr. Illig, the lessor who was Fidler had an interest here did he not?

Mr. William F. Illig: No --

Justice William J. Brennan: Well I mean this route as I understand it was -- lessor was the owner of the truck and he leased the truck with driver to Aetna.

Mr. William F. Illig: Right.

Justice William J. Brennan: Well as lessor he had a business interest in having that truck traverse that 100 odd miles didn't he?

It may have been on a delivery on behalf of Aetna, but wasn't that also an interest?

Mr. William F. Illig: But bear in mind, and we come back to the fact as to what the Court was explaining the first interrogatory and the terms of terms of the interrogatory alone itself as to whether they should answer in the affirmative or negative as to whether it was in furtherance of the defendant's interest.

Justice William J. Brennan: Well I can understand that it might have been in furtherance of the defendant's interest, but does not it fairly follow that it was in the regular course of business, that the question.

Mr. William F. Illig: Yes.

It was in the regular course of business, in the light of the Court's explanation, that if can --

Justice William J. Brennan: This much is true isn't it, that as the holder, you were the holder of the ICC certificates aren't you?

Mr. William F. Illig: Yes, Your Honor.

Justice William J. Brennan: And as I understand it, even though you exercise no control over the operation of the rig itself, nevertheless as to reliability to a third party by reason of any misconduct with a negligence or otherwise of the lessor, then even though you reserve no rights of control liability would follow because the lessor was liable isn't that so, as a holder of the ICC certificate?

Mr. William F. Illig: I don't know if that would follow in the case of negligence of the lessor.

You mean as far as third party is concerned?

Justice William J. Brennan: Yes.

Mr. William F. Illig: I would say then probably yes, because the courts have taken the position as a matter of public policy the holder of the certificate has to bear responsibility.

Justice William J. Brennan: Well then don't you think we have that problem involved in this case at all?

Mr. William F. Illig: No, I don't Your Honor, and one point apparently I haven't made clear to you and that is this.

All of this evidence of the hiring was admitted against Aetna on the basis of the driver's extra judicial statements which were objected to as to hearsay.

Now I would like to know how the petitioners in this case could have gotten those declarations into evidence against Aetna if he was doing the hiring for Fidler a third party, then it would not be in the course of his employer's business when Aetna is the employer.

In other words, if would have been the rankest hearsay and the plaintiff wouldn't have been entitled to their verdict.

That is one of the most crucial things.

If you look at 36 A where the defendant is vehemently objecting to this evidence, because Aetna alone is sued and they said no we got to -- you should allow this because these were declarations made in the course of his employment for Aetna and if he was doing it for Fidler, then it would be hearsay as to Aetna, and yet that is result of the Your Honor's conclusion it seems to me.

Chief Justice Earl Warren: Mr. Illig I like to leave the employment aside for a moment, might it not there logically on the question of whether he was a trespasser, when he was on the truck?

Mr. William F. Illig: If that conclusion would follow, but it is not the only conclusion that would follow.

Chief Justice Earl Warren: No –-

Mr. William F. Illig: In other words if the jury had answered no, there was no such emergency Your Honor, then he would have been a trespasser and the legal principles would have applied.

If they answer yes it is true that they argue, he is not a trespasser but naturally no employee is a trespasser, but the factual basis of employment was presented to the jury and they passed on it.

This point I think must be stressed before the Court, because it hasn't -- I haven't brought it out, that at no time heretofore has the petitioner ever maintained that the factual basis of employment was not passed upon by the jury.

They have argued that he was not in the regular course of employment only as a matter of law and only after the Court of Appeals decided this case did they come into this Court for the first time and say the factual basis of employment was not passed on.

Actually this case was tried exactly as the petitioners wanted it, because as far as they were concerned they didn't want any reference to workman's compensation in the case, they were confident that the trial judge was going to uphold their contention.

In fact page at 68 the Court made a statement with regard to compensation.

He says at the bottom of 68, he says I am not sure how they are going to rest on this proposition of $25, whether he was employee or whether he wasn't.

I think that's a question for the Court, don't you?

Mr. Gornall, yes sir.

In other words whether he is on compensation or not and over at 174 A or 173 A, here is another statement by the Court, in other words the finding of trespasser is a conclusion of law and Mr. Knox for the petitioner says the same as the employees.

It was only the defendant that sought to bring the question of workman's compensation directly before this jury by its seven-point per charge which the Court refused.

But we maintain that the Court of Appeals was correct in applying the facts, in apply the legal principles to the facts that were brought out by the petitioner's own evidence in this case and there was no dispute about that evidence.

And that consequently that the petitioner, the family of decedent should be relegated to the remedies which are permitted under the Workman's Compensation Act and as I say that petition has been and still is pending.

And when they say that this was decided by the Court of Appeals, Judges Goodrich, Maris and Hasties, three of our best judges I think in our Third Circuit, as solely of the question of law when it is contrary to what is stated here, that it turns on a question of fact we accept the jury's finding of fact and we are applying the law and as this Court has many times said, it is the duty of -- the basic task of the Court of Appeals to apply the law.

In conclusion I'd simply like to make this point, the petitioner's case it seems to us comes down to this.

It's a case where the petitioner's own proof developed all the evidence of emergency employment which was in the regular course of the defendant's business by virtue of applying the principals to the finding of facts and it's exactly the same as though the petitioner had, had a negligence case and disclosed his own contributory negligence as part of his case, admittedly that is an affirmative defense to be brought out by the defendant, but if the petitioner brings it out as part of his own case then isn't the Court permitted to apply the principles of law to that binding effect.

That is our case, Your Honor.

We feel that as a matter of justice in this case, the petitioners' proper remedies are in workman's compensation where they tried to get in as I say even before the trial of this case.

And that it did not resolve solely as a question of law, but that when you read the finding of fact in the light of the Court's instructions and all of the evidence that preceded the presenting of the interrogatory, you will see that there was a finding of fact which was adopted by the Court of Appeals as the basis of its decision.