New York, Chicago & St. Louis Rd. Co. v. Biermacher ( 1926 )

I concur in the affirmance of the judgment of the Court of Appeals and the grounds stated in the per curiam opinion. I am writing this separate memorandum because I am of the opinion that upon the former review of this controversy, as reported in110 Ohio St. 173, 143 N.E. 570, the members of this court concurring in the judgment then rendered, including the writer of this concurring opinion, erred in the declaration of the second paragraph of the syllabus as follows:

"2. The Supreme Court of the United States has decided that the doctrine res ipsa loquitur does not apply in the trial of cases between servant and master, arising under the federal Employers' Liability Act."

That declaration of law was based upon certain cases cited and quoted in the opinion at pages 179, 180, 181, and 182 (143 N.E. 570). The quotations are accurate, but do not support the conclusions reached. The case of Patton v. Texas Pac. Ry.Co., 179 U.S. 658, 21 S.Ct., 275, 45 L.Ed., 361, and the case of Looney v. Metropolitan Rd. Co., 200 U.S. 480,26 S.Ct., 303, 50 L.Ed., 564, were decided before the enactment of the federal Employers' Liability Act, and therefore could not have been decided with any special reference to that statute. In those cases a distinction is drawn between cases involving carrier and passenger on the one hand and employer and employe on the other, and the well-known, well-established doctrine is declared that no presumption of negligence arises against an employer from the mere fact of accident, but that negligence is an affirmative fact for the injured employe to establish against the employer before there can be a recovery. This principle is quite apart from the principles which govern the doctrine of res ipsa loquitur. That doctrine applies only under exceptional circumstances, and no definite rule has ever been declared whereby the limitations of the doctrine are clearly established. Nowhere in either thePatton or Looney cases is it declared that the doctrine resipsa loquitur does not apply in the trial of cases between servant and master. At a later time, in Minneapolis St. LouisRd. Co. v. Gotschall, Admx., 244 U.S. 66, 37 S.Ct., 598,61 L.Ed., 995, Chief Justice White had under consideration the application of the doctrine res ipsa loquitur to a case involving master and servant, and, in the course of his opinion, referred to the Patton and Looney cases, and agreed that the doctrine could not be applied to the facts of those cases, and then proceeded to state that the doctrine could apply in cases between master and servant only where the accident happened "under the most exceptional circumstances." It seems to me that it must be conclusively inferred from that language that, if the circumstances are exceptional, the doctrine may be applied.

In a very large number of cases since the enactment of the federal Employers' Liability Act, the courts of last resort of many of the states have applied the doctrine under exceptional circumstances in cases where employes have brought suit against the employer under the provisions of that act. The federal Courts of Appeals have also applied the doctrine in numerous cases; some decided since the decision of the Gotschall case, in which its principles have been followed. It is not a conclusive argument in favor of the applicability of the doctrine in cases between master and servant, but it is at least persuasive that, in the case ofCentral Ry. Co. of N.J. v. Peluso, Admx., 261 U.S. 613,43 S.Ct., 359, 67 L.Ed., 827, the Supreme Court of the United States refused the writ of certiorari where the doctrine had been applied in the Court of Appeals below, and the application for the writ of certiorari was based solely upon the contention that the maxim would not apply in master and servant cases. The decision of the Court of Appeals in the Peluso case is reported in 286 F., 661. As showing that this question was involved in the Peluso case in the Court of Appeals, I am quoting the comment of Mayer, J., upon the Gotschall case:

"From the foregoing we think it is quite clear that the Supreme Court has left unimpaired the doctrine of res ipsaloquitur as between employer and employe where the circumstances are such as to warrant the application of that doctrine in the sense of the definition in the Francey and other cases cited supra."

For the foregoing reasons, and based upon the foregoing authorities, I am of the opinion that this court should at this, the earliest opportunity, correct what I conceive to be an erroneous declaration of law in the second paragraph of the Biermacher case, as reported in110 Ohio St. 173, 143 N.E. 570.