In this case arising under the Federal Employers' Liability Act,
it appeared after argument and due consideration that the course of
litigation and the decisions in the Florida courts did not turn on
the issue on the basis of which certiorari was granted.
Accordingly, the writ is dismissed.
Reported below: 118 So. 2d 237.
The petition for certiorari in this case raised solely a
question regarding the bearing of the Railway Labor Act on the
enforcement of the Federal Employers' Liability Act. The petition
was granted. 364 U.S. 869. After full argument and due
consideration, it became manifest that the course of litigation and
the decisions in the Florida courts did not turn on the issue on
the basis of which certiorari was granted. Accordingly, the writ is
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACK join, dissenting.
I cannot agree that, as the Court says, the petition for
certiorari in this case "raised solely a question regarding the
bearing of the Railway Labor Act on the enforcement of the Federal
Employers' Liability Act." The issue actually tendered is the
familiar one whether a reviewing
Page 366 U. S. 162
court properly deprived an FELA claimant of a jury verdict on
the ground that the evidence was insufficient to support the
finding of the carrier's negligence. The Court relies upon "the
course of litigation and the decisions in the Florida courts." My
reading of what occurred in the Florida courts makes manifest to me
that the issue under the Question Presented in the petition is as
to the sufficiency of the proofs to establish negligence.
The petitioner was a flagman in the employ of Florida East Coast
Railway. He brought this action under the Federal Employers'
Liability Act, 45 U.S.C. § 51 et seq., in the Circuit Court of Dade
County, Florida. He alleged that he suffered injuries in the course
of his employment while taking a "field test" which the carrier
required him to take along its right of way and tracks in Florida.
He alleged eight grounds of negligence, but has abandoned six, and
we are concerned only with two, namely that the carrier violated
the Federal Employers' Liability Act,
"(a) [I]n negligently and unlawfully requiring the plaintiff to
participate in such a 'field test'; (b) [I]n negligently allowing
its servants, agents or supervisors to conduct such a 'field
At the close of petitioner's case at the trial, the carrier made
a motion to dismiss the claim alleged under allegations (a) and
(b), on the ground that those allegations "pertain to the right to
give a field test." Respondents contended that such a claim, if
cognizable at all, was cognizable not under the Federal Employers'
Liability Act, but only as a grievance within the exclusive
cognizance of the National Railroad Adjustment Board created under
the Railway Labor Act, 45 U.S.C. § 153, First (i); see Union
Pacific R. Co. v. Price, 360 U. S. 601
trial judge denied the motion, and ruled that the gravamen of the
petitioner's claim was not that respondents could not require
petitioner to take a test, but that, "knowing his physical
condition," the carrier was negligent in requiring the petitioner
Page 366 U. S. 163
the particular test. The trial judge also denied the carrier's
motion for a directed verdict grounded on the alleged insufficiency
of the proofs to establish negligence. The jury returned a verdict
for the petitioner. The Florida District Court of Appeal, Third
District, reversed and remanded the case for a new trial. 104 So.
On remand, counsel for both parties and the trial judge
discussed at length what it was the Court of Appeal held. There was
agreement that the opinion of the Court of Appeal was ambiguous. It
might be read to ground the reversal on the finding by the Court of
Appeal that the cause was pleaded and tried on a claim not
actionable under the Federal Employers' Liability Act, but, if at
all, under the Railway Labor Act. This is suggested by the language
in the opinion, "If the appellee were aggrieved, he had a remedy
for such grievance under the Railway Labor Act." 104 So. 2d at
869-870. On the other hand, the opinion might also be interpreted
as grounding the reversal on the insufficiency of the evidence to
prove negligence, because the petitioner, while assuming the right
of the carrier to give the test, had failed to show that it was
negligent in the circumstances proved for the carrier to require
the petitioner to take the test. Support for this interpretation is
in the statement of the opinion that
"[T]he appellee's entire case as reflected by this record
conclusively indicates that it was premised upon the claim that
appellant's conduct in requiring the appellee to take a field test
was unlawful, and that all of his injuries and damages resulted
from such unlawful act."
104 So. 2d at 870.
The trial judge finally concluded that the opinion of the Court
of Appeal was to be read as resting the reversal upon the latter
ground. The trial judge stated,
"I think that I am inclined to agree with [petitioner's counsel]
that they [the Court of Appeal] just didn't say requiring a field
test was improper. They said, 'requiring the
Page 366 U. S. 164
appellee to participate in a field test,' and they had the field
test that was conducted when they wrote this opinion, and, if their
opinion means anything to us at all, I think we have got to follow
it to the extent of our interpretation of their words and what they
The trial judge ruled further that a cause of action for
negligence on the part of the carrier in giving the particular test
"would be included" in allegation (a) above quoted.
The record on remand thus plainly reveals that the trial judge
agreed with petitioner's argument that allegations (a) and (b) of
the complaint pleaded, and the parties had tried, a cause of action
under the Federal Employers' Liability Act.
Counsel for the carrier admitted during the colloquy on the
remand that, if this was the cause of action pleaded and tried, the
claim was actionable under the Federal Employers' Liability Act.
Carrier's counsel went further. He said, "I think the proofs so far
justify it, but if they want to travel on that issue, I think they
could amend." Petitioner's counsel was willing to amend, but
insisted that the case had been pleaded and tried on that theory,
and that no amendment was necessary. No formal amendment was made,
obviously because the trial judge ruled that the theory was
embraced within allegation (a). However, petitioner's counsel
desired to apply for review of the Court of Appeal's determination
as rested, as the trial judge had interpreted its opinion, on the
ground that the evidence was insufficient to present a jury
question of negligence. But since a new trial was ordered by the
Court of Appeal, there could be no final judgment review of which
might be sought until a judgment was entered on the retrial. In
order to obtain such a judgment without retrying the case,
petitioner's counsel proffered the trial record of the first trial
as his only proof at the retrial. He expressly stated that his
Page 366 U. S. 165
was that the trial record was sufficient
"to prove that the railroad either knew or should have known
that Bert Smith was physically unable to take that test, and likely
to be injured if he took it, and, in spite of what the railroad
knew or should have known, they gave him the test."
The trial judge accepted the proffer over the carrier's
objection, but ruled that he was bound by the Court of Appeal's
holding that that record did not suffice to raise a jury question
"[U]nder the testimony that was adduced before on this point,
that I would rule that there was no proper issue of evidence to
submit to the jury of negligence on requiring him to take this
particular field test under the testimony."
The judge accordingly directed the entry of a judgment in favor
of the carrier. Obviously the case went to the District Court of
Appeal the second time with this gloss of the trial judge's
interpretation of that Court's earlier opinion. Therefore, when the
District Court of Appeal, per curiam, affirmed "upon the authority"
of its previous opinion, 118 So. 2d 237, the affirmance sustained
the trial judge's interpretation of the reversal as having rested
not on the ground that the Railway Labor Act precluded the
petitioner's claim under the Federal Employers' Liability Act, but
on the ground that the evidence of negligence was insufficient to
support a recovery on the claim properly pleaded under the latter
statute. The Supreme Court of Florida, in an unreported minute,
denied petitioner's petition for certiorari. We granted his
petition to this Court, 364 U.S. 869.
Against this background of "the course of litigation and the
decisions in the Florida courts," the Question Presented, if plain
English is to have its ordinary meaning, is whether the Florida
Court of Appeal correctly determined that the evidence at the first
trial was insufficient to raise a jury question of the alleged
negligence of the
Page 366 U. S. 166
carrier in requiring the petitioner, knowing his physical
condition, to take the field test. For the Question Presented is as
"Did the Florida Appellate Court err in holding that, when a
railroad employee sustains personal injuries while performing an
alleged physical fitness field test ordered by the railroad, that
the provisions of the Railway Labor Act, 45 U.S.C. Section 151,
preclude him from claiming that the giving of
such a test under the facts and circumstances of this case was an
act of negligence under the Federal Employers' Liability Act,
45 U.S.C., Section 51, et seq.
Although the members of the Court have disagreed whether we
should grant review of these cases, when they are brought here, all
of us except my Brother FRANKFURTER believe that we have the duty
to decide them on the merits. Viewing the issue presented for our
review, I have read the trial record. I need not rely solely on my
own conclusion that the evidence plainly presented a jury
"whether the proofs justify with reason the conclusion that
employer negligence played and part, even the slightest, in
producing the injury . . . for which damages are sought."
Rogers v. Missouri Pacific R. Co., 352 U.
, 352 U. S. 506
I may summon to my support the concession of the carrier's counsel
that on that issue "the proofs so far justify it." I would reverse
and remand the cause with direction to enter an order reinstating
the judgment in favor of the petitioner.
MR. JUSTICE DOUGLAS joins this opinion except that he would
remand for a new trial. He believes that the District Court of
Appeal was correct in holding that the jury trial was not a fair
one. See Butler v. Smith,
104 So. 2d 868.