The course of business of a company engaged in logging and
milling timber consisted in carrying its logs from its own timber
land within a state over its own logging railroad to tidewater, in
the same state, in selling there a part to others who towed them
away and resold them to purchasers within and without the state,
and in towing the rest to its mills in the same state, milling them
at the latter place and then disposing by sale of their products
partly in local markets and partly in other states and countries.
Held that the transportation of the logs by the railroad
was not interstate or foreign commerce, and that an employee of the
railroad, injured while engaged in unloading some of them at the
tidewater terminus, was not employed in such commerce within the
federal Employers' Liability Act.
A plaintiff in an action for personal injuries based on the
federal Employers' Liability Act died while the case was pending in
the circuit court of appeals. Writ of error to review an adverse
judgment of that court having been subsequently sued out in his
name and citation issued and served, attorneys for both sides
stipulated that his administrator might be substituted.
Substitution, however, was refused by the court of appeals upon the
ground that the writ had deprived it of jurisdiction. Upon a motion
to dismiss upon the ground that the writ was wrongfully allowed and
the administrator not properly a party,
held that the
defect of the proceedings was, at most, an irregularity which, in
view of the stipulation, was waived.
218 F. 737 affirmed.
After judgment against plaintiff in the court below, the writ of
error from this Court was allowed by a judge of that court March
15, 1915, upon a petition therefor made by plaintiff's attorney in
plaintiff's name. Citation was
Page 243 U. S. 37
issued conformably, March 22, 1915, of which service was
admitted by defendants' attorneys March 23d. In April following,
attorneys for both sides stipulated that the plaintiff died
February 28, 1915, while the cause was pending in the court below,
that his administrator was duly appointed March 23, 1915, and that
the administrator might be substituted, and application for an
order of substitution was made accordingly by plaintiff's attorney,
but was refused by the court below upon the ground that issuance of
the writ of error had deprived it of jurisdiction over the cause.
The facts are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
This suit was brought under the Employers' Liability Act to
recover damages resulting from injuries suffered by Nordgard while
in the employ of the defendant railway company. The trial court
directed a verdict for the defendants on the ground that there was
no evidence tending to show that the defendants and Nordgard were
engaged at the time of the accident in interstate or foreign
commerce, and the case is here on writ of error to secure a
reversal of the action of the court below, affirming the judgment
entered by the trial court, dismissing the suit. 218 F. 737.
There are the facts: the defendant Stimson Mill Company
Page 243 U. S. 38
was engaged in the logging and lumber business, and carried its
logs on its own logging railroad, the Marysville & Northern
Railway, from timber land owned by it in Washington to a point near
Marysville in that state, where they were dumped into the waters of
Puget Sound. Part of the logs were thereafter sold to mills located
on the sound, and the balance were rafted and taken by tugs to the
Stimson Company's mills at Ballard, Washington, where they were
manufactured into timber, which was thereafter sold, about twenty
percent in local markets and the remainder in other states and
countries. The logs which were sold after they had been carried to
tidewater by the railroad were towed away by the purchasers to
their mills or places for storage, and part of them were
subsequently resold for piling or poles to purchasers both within
and without the state. Nordgard was a brakeman on the logging
railroad, and suffered the injuries for which he sued while engaged
in unloading logs from the cars at tidewater.
The conclusion of the court below that, under these facts, the
defendants were not engaged in interstate or foreign commerce when
the injuries were suffered was based upon the decisions in
Coe
v. Errol, 116 U. S. 517, and
The Daniel
Ball, 10 Wall. 557, from which the following
quotations were made:
"When the products of the farm or the forest are collected and
brought in from the surrounding country to a town or station
serving as an entrepot for that particular region, whether on a
river or a line of railroad, such products are not yet exports, nor
are they in process of exportation, nor is exportation begun until
they are committed to the common carrier for transportation out of
the state to the state of their destination, or have stated on
their ultimate passage to that state."
116 U.S.
116 U. S.
525.
"But this movement [that is, interstate commerce movement] does
not begin until the articles have been
Page 243 U. S. 39
shipped or started for transportation from the one state to the
other. The carrying of them in carts or other vehicles, or even
floating them, to the depot where the journey is to commence, is no
part of that journey. . . . Until actually launched on its way to
another state or committed to a common carrier for transportation
to such state, its destination is not fixed and certain. It may be
sold or otherwise disposed of within the state, and never put in
course of transportation out of the state."
116 U. S. 116 U.S.
517,
116 U. S.
528.
After pointing out that these rulings had not been modified,
but, on the contrary, had been reaffirmed by the subsequent cases
relied upon by the plaintiff in error (
Texas & New Orleans
R. Co. v. Sabine Tram Co., 227 U. S. 111;
Railroad Commission v. Texas & Pacific Ry. Co.,
229 U. S. 336;
Southern Pacific Terminal Co. v. Interstate Commerce
Commission, 219 U. S. 498;
Ohio Railroad Commission v. Worthington, 225 U.
S. 101), the Court said:
"In the case at bar, there was no initial shipment of the goods.
The transportation of the poles from the forest in which they were
cut to tidewater, where they were sold, was not a shipment. There
was no contract of carriage; there was no bill of lading; there was
no consignor or consignee. The goods were not committed to a
carrier. The defendant Mill Company simply carried over its own
road, on its own cars, its own goods to a market where it sold and
delivered them. It had no concern with the subsequent disposition
of them. It was under no obligation to deliver them to another
carrier, and no other carrier was under obligation to receive them
or carry them further. The selling of the poles after the first
sale by the Mill Company, or whether they were going outside of the
state, depended upon chance or the exigencies of trade. The
movement of the poles did not become interstate commerce until, by
the act of the purchasers thereof, the
Page 243 U. S. 40
poles were started on their way to their destination in another
state or country. The beginning of the transit which constitutes
interstate commerce"
"is defined in
Coe v. Errol to be the point of time
that an article is committed to a carrier for transportation to the
state of its destination, or started on its ultimate passage."
"
General Oil Co. v. Crain, 209 U. S.
211,
209 U. S. 229."
The conclusion of the court below that the defendants were not
engaged in interstate or foreign commerce when the accident
occurred is, we think, clearly demonstrated by the reasoning by
which it sustained its conclusion and the authorities upon which it
relied as above stated, and its judgment should be affirmed.
Before concluding, we observe that, in view of the stipulation
of the parties in the court below, agreeing to the substitution as
plaintiff in error of the administrator of Nordgard, who died while
the cause was there pending, the motion to dismiss on the ground
that the writ of error was wrongfully allowed, and that the
administrator is not a proper party, is based upon a mere
irregularity which was waived.
Affirmed.
