Ex parte Atlantic Coast Line Ry. Co. , 190 Ala. 132 ( 1914 )

McCLELLAN, J.

This application for writ of certiorari to the Court of Appeals presents for review the action of that court as expressed in its opinion to he found in 9 Ala. App. 199, 63 South. 693, on the appeal thereto of Atlantic Coast Line R. R. Co. v. Jones.

Counts 2 and 3% of the complaint were drawn to state a cause of action under the state Employers’ Liability Act. — Code, § 3910. Count 7 was drawn to state a canse of action under the federal Employers’ Liability Act.

(1) Upon a review of the evidence, the Court of Appeals concluded that, at the time the injury complained of in the complaint was suffered by the plaintiff, Jones, he was engaged in a service of interstate commerce. As has been settled here by several decisions, this conclusion of fact is final, so far as review in this court is concerned.' — Ex parte Steverson, 177 Ala. 384, 389, 58 South. 992, among others.

(2) The fact being that plaintiff was, when injured, in the service of interstate commerce, the federal Employers’ Liability Act afforded the statutory rule for the determination of the liability vel non of the interstate carrier, instead of the state Employers’ Liability Act (section 3910), for it has been finally adjudged by the Supreme Court of the United States that the federal Employers’ Liability Act supersedes a state enactment in that field, governing, exclusively, cases falling within its purview. — Seaboard Air Line v. Horton, 233 U. S. 492, 501, 34 Sup. Ct. 635, 18 L. Ed. 1062; Second Employers’ Liability Cases, 223 U. S. 1, 55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Mo., Kan. & Tex. Ry. v. Wulf, 226 U. S. 570, 575, 576, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1911B, 131.

(3, 1) It results, necessarily, from the stated conclusion of fact attained by the Court of Appeals, that the plaintiff could, not have recovered under the counts declaring as upon a liability in virtue of the local (state) statute. In consequence, the general affirmative charge in defendant’s favor upon count 3y2 was defendant’s due. The Court of Appeals was in error in not SO' deciding. Accordingly, on that ground alone, the-judgment of the Court of Appeals must be reversed.

Upon the considerations made to appear in the opinion of the Court of Appeals, we have no .doubt that a plaintiff may join, in distinct counts, in one complaint a sufficiently stated cause of action, arising out of the one transaction, for breach of duty under the state Employers’ Liability Act and for breach of duty under the federal Employers’ Liability Act; but, as before pronounced, he cannot recover as upon the authority of the local statute in a case governed exclusively by the national statute, nor can he recover as upon the authority of the national statute in a case that does not fall within the national enactment.

For the error indicated, the writ is granted, and.the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Appeals.

The writ is granted.