In this action under the Federal Employers' Liability Act to
recover from a railroad damages for injuries sustained by
petitioner while working on a private siding owned by one of the
railroad's customers, the trial court erred in instructing the jury
as to the factors to be considered in determining whether
petitioner was an "employee" of the railroad, within the meaning of
the Act, during the performance of the work; and affirmance of a
judgment entered on the jury's verdict for the railroad is
reversed. Pp.
362 U. S.
396-400.
265 F.2d 75 reversed.
PER CURIAM.
In this action under the Federal Employers' Liability Act, 35
Stat. 65, as amended, 45 U.S.C. §§ 51-60, the Court of Appeals for
the Fifth Circuit, by a divided court, affirmed a judgment in favor
of the respondent railroad entered on a jury verdict in the
District Court for the Northern District of Florida. 265 F.2d 75.
We granted certiorari, 361 U.S. 861, to consider the issues
presented in the light of our decisions in
Sinkler v. Missouri
Pacific R. Co., 356 U. S. 326, and
Baker v. Texas & Pacific R. Co., 359 U.
S. 227. The latter is an intervening decision.
The railroad employed the petitioner as a laborer in a section
gang with a regular work-week from Monday through Friday. The
petitioner was injured on a Saturday, ordinarily the gang's day
off, when the gang, supervised
Page 362 U. S. 397
by their foreman, using the work tools supplied by the railroad,
and following standard railroad methods for doing the work, were
replacing ties under a siding track which ran off the railroad's
main line tracks to the plant of the M. & M. Turpentine
Company. That company had an agreement with the railroad calling
for the railroad to make periodic inspections of the track and for
the repairs disclosed to be necessary by such inspections to be
made by and at the expense of the Turpentine Company "to the
satisfaction of the [railroad's] Chief Engineer." When an
inspection revealed the need for the work in question, the
Turpentine Company engaged the petitioner's foreman to recruit his
crew to do the work on their day off under his direction. The
foreman offered the crew railroad overtime rates of pay for doing
the work, but there is a sharp conflict in the evidence whether he
told the crew that they would not be working for the railroad, but
for someone else. The foreman paid the wages with funds supplied to
him by the Turpentine Company.
The petitioner contends that the proofs require a holding as a
matter of law that the Turpentine Company, in the maintenance of
the siding, was the "agent" of the respondent railroad within the
meaning of § 1 of the Federal Employers' Liability Act, 45 U.S.C. §
51, as we construed that term in
Sinkler v. Missouri Pacific R.
Co., supra. We find no merit in this contention. Indeed, we do
not think that the proofs presented a jury question whether the
Turpentine Company was the railroad's "agent" within the meaning of
the Act. This was not a situation, as in
Sinkler, in which
the railroad engaged an independent contractor to perform
operational activities required to carry out the franchise. This
was a siding privately owned by the Turpentine Company, and
established to service it alone. In maintaining it, we do not see
how it can be said under the proofs that the Turpentine
Page 362 U. S. 398
Company was "engaged in furthering the operational activities of
respondent."
Sinkler v. Missouri Pacific R. Co., supra, at
356 U. S. 331.
Even the use of the siding by local farmers in harvest time to load
respondent's cars with watermelons, a fact heavily relied upon by
the petitioner, was, according to uncontradicted testimony, not at
the instance of the railroad, but because the President of the
Turpentine Company
"leased this track -- I guess that is what you would call it --
anyhow, he let those farmers load watermelons out there on that
track, and he always repaired it every year before watermelon
time."
However, we agree with the petitioner's alternative contention
that the trial judge erred in refusing to instruct the jury as
requested by the petitioner, [
Footnote 1] and in giving the
Page 362 U. S. 399
instructions he did, [
Footnote
2] as to the factors to be considered by the jury in
determining whether the petitioner was an "employee" of the
railroad during the performance of the work within the meaning of
the Act. The instructions given in effect limited inquiry to the
question whether the petitioner was aware that the railroad
considered him not to be working for it, but for some third
Page 362 U. S. 400
party. But neither the railroad's communication of its concept
of petitioner's status to petitioner nor his acquiescence therein,
if shown, is determinative of the issue.
Cf. Cimorelli v. New
York Central R. Co., 148 F.2d 575, 578. The parties'
characterization is but one factor to be considered among others,
see Restatement, Agency 2d, § 220(2)(i), and the issue is
one for determination by the jury on the basis of all the relevant
factors.
Baker v. Texas & Pacific R. Co., supra.
Reversed.
MR. JUSTICE FRANKFURTER would dismiss this writ of certiorari as
improvidently granted. As the Court's opinion demonstrates, the
case solely presents the appropriateness of instructions given by a
trial court and the refusal of requested instructions in the light
of the unique circumstances of a particular situation. As such, it
falls outside the considerations which, according to Rule 19 of
this Court, govern the granting of a petition for certiorari.
See Ferguson v. Moore-McCormack Lines, 352 U.
S. 521,
352 U. S. 524
(dissenting).
[
Footnote 1]
The requested instructions were the following:
"One of the issues to be decided in this case is whether or not
the plaintiff, Raymond P. Ward, was employed by the defendant
railroad at the time he was injured. This issue must be determined
from all of the circumstances of the case. The primary factor to be
considered is whether or not the railroad had the power to direct,
control, and supervise the plaintiff in the performance of his work
at the time he was injured. Other relevant factors to be considered
are: who selected and engaged the plaintiff to perform the work;
who furnished the tools with which the work was performed; who paid
the plaintiff his wages for the performance of the work; the amount
of scale of such wages; and who had the power to fire or dismiss
the plaintiff from the work."
"If you find that the railroad, through its foreman, I. H. Keen,
had the power to direct, control and supervise the plaintiff in the
performance of the work he was doing at the time he was injured,
then you should find that the plaintiff was employed by the
defendant railroad at the time he was injured."
"The fact that the money used to pay the plaintiff Ward for the
work he was doing at the time he was injured came originally from
some third person with whom the railroad or the owner of the spur
track had made an arrangement does not remove the defendant
railroad from its employer-employee relationship with the plaintiff
Ward, and does not relieve the defendant railroad of liability for
injuries suffered by the plaintiff during the course of his
railroad employment as a result of the defendant railroad's
negligence."
"The accident here involved occurred upon a spur track which was
partly owned by the M. & M. Turpentine Co. The fact that the M.
& M. Turpentine Co. had contracted with the defendant railroad
to maintain all or a portion of this spur track does not relieve
the defendant railroad of its liability to the plaintiff if the
plaintiff was injured during the course of his employment with the
defendant railroad on the spur track as a direct consequence, in
whole or in part, of the defendant railroad's negligence."
[
Footnote 2]
The pertinent portion of the court's charge was as follows:
"That the Railroad Company was liable unless the defendant's
foreman made it clear to him before he started to work that morning
that they were not working for the Railroad, but working on a
private track to make such extra money. I think I put it just about
that simply, didn't I, to make some extra money. I told you that,
if the foreman failed to make that disclosure to him, ordered him
to go out there and go to work, and put him to work on that private
track, the Railroad Company would be liable. I don't see how I can
say it any plainer. Do you have a word that you think I could use
to make it any plainer?"
"Mr. Rutledge: Your Honor, to make it clear he was working for
some third person, and not working for the Railroad."
"The Court: Yes sir, that is the word I believe he suggested --
that he was working for some third person. The foreman had to make
it clear to him that he was working for some third person, and not
the Railroad. I thought I said it, but I guess I didn't spell it
out as much as he wanted, but I want to make that clear to you. If
you find from this evidence he was so advised before he went out
there to work, and he went out on his own volition and joined the
others to make some extra money, then he was not an employee of the
Railroad Company, and they would not be liable."
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITTAKER joins,
dissenting.
Since I consider that, except as to the one issue submitted to
the jury, there is no evidence in the record tending to establish
any of the usual criteria showing an employment relationship
between the petitioner and the respondent in connection with this
work, I dissent.
See Restatement, Agency 2d, § 227,
Comment a.