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. 396-400.
265 F.2d 75, reversed.
Neal P. Rutledge argued the cause and filed a brief for petitioner.
Sam T. Dell, Jr. argued the cause for respondent. On the brief were L. William Graham, Norman C. Shepard and Frank G. Kurka.
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 [362 U.S. 396, 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 [362 U.S. 396, 398] Company was "engaged in furthering the operational activities of respondent." Sinkler v. Missouri Pacific R. Co., supra, at 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, 1 and in giving the [362 U.S. 396, 399] instructions he did, 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 [362 U.S. 396, 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.
[ 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 some 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. [362 U.S. 396, 401]