King v. Rd. Co.

I concur in part and dissent in part. In my view, the first assignment of error is not well taken. However, I am in complete accord with the majority view of this court that the second assignment of error is well made.

On December 12, 1963, Samuel King, who was not an employee of the defendant, New York, Chicago St. Louis Railroad Company, filed suit against the railroad in the Common Pleas Court of Lucas County for injuries sustained on January 31, 1962.

Upon appropriate motion by the Railroad Company the trial court ordered Mr. King to make his petition more definite and certain by stating whether he was predicating his cause of action on a violation of the Federal Safety Appliance Act or on some common-law theory of negligence.

In compliance with the order, Mr. King filed a first amended petition on April 27, 1964, stating that he was basing his cause of action on a violation of the Federal Safety Appliance Act. The Railroad Company demurred, arguing that Mr. King was an employee of a private industry and was not a member of a class for whose protection the Federal Safety Appliance Act was passed. The trial court sustained the demurrer on December 4, 1964, holding that Mr. King had not set forth a cause of action.

On December 8, 1964, Mr. King filed a second amended petition wherein he alleged a cause of action founded upon common-law negligence, and wherein he made no reference to the Federal Safety Appliance Act. The second amended petition was filed more than two years after the cause of action arose. The Railroad Company moved the trial court for an order striking Mr. King's second amended petition for the reason that Mr. King had substantially changed his cause of action, beyond the two-year period. The court sustained the Railroad Company's motion.

Mr. King has appealed both these rulings to this court.

The first assignment of error is as follows:

"The trial court committed error in sustaining defendant's demurrer to plaintiff's amended petition."

In Jacobson v. New York, N. H. H. R. Co. (1953),206 F.2d 153, the court held that, in order to base a cause of action solely upon a violation of the Federal Safety Appliance Act, one who is not an employee of a railroad must, as a matter of law, look to the state courts for relief.

Coming then to Ohio cases, attention is given to the case ofLoucks v. New York, Chicago St. Louis Ry. Co., 14 Ohio App. 320. At page 325, the court held as follows:

"We are constrained to hold in this case that the Federal Safety Appliance Act did not apply to the plaintiff, who was employed and paid and fully controlled by The Cromwell Steel Company, and in no sense doing any work for or under the direction of the defendant; that for that reason that the act in question did not create a liability in favor of the plaintiff and against the defendant.

"* * *

"Plaintiff not being an employe of the defendant, none of the acts, state or national, which abolish or modify the common-law doctrine of contributory negligence apply to him. Such acts by their very terms apply only where the parties sustain the relation of master and servant, and as the plaintiff in this case was not the servant of the defendant he cannot claim the benefit of such acts." The Loucks case was affirmed by the Ohio Supreme Court, in 103 Ohio St. 164, where, at page 167, the court states:

"Under this state of facts the defendant would not become liable in an action by the plaintiff for such injury under the terms of either the federal or state safety-appliance act. * * *"

The reasoning found in the Loucks case was followed in the case of Stevenson v. Lake Terminal R. Co., 42 F.2d 357, decided in 1930, where, in the first paragraph of the headnotes, it is said:

"Where injured person was not in employ of defendant railroad, action under Safety Appliance Act fails."

The plaintiff cites the cases of Fairport, Painesville Eastern Rd. Co. v. Meredith (1934), 292 U.S. 589,78 L. Ed. 1446, 54 S. Ct. 826; Shields v. Atlantic Coast Line Rd. Co. (1956), 350 U.S. 318, 100 L. Ed. 364, 76 S. Ct. 386; andBarney v. Staten Island Rapid Transit Ry. Co. (1963),316 F.2d 38. In these cases it was held that certain classes of nonemployees come under the protection of the Federal Safety Appliance Act. However, these cases do not stand for the proposition that the Federal Safety Appliance Act has been extended in Ohio to employees of a private industry, which industry has some contractural relationship with the railroad.

Plaintiff has not demonstrated that a right of action involving absolute liability can be predicated upon a violation of the Federal Safety Appliance Act in Ohio for the benefit of an employee of a private industry dealing with the railroad. If Ohio in fact chooses to broaden the class to include nonemployees such as this plaintiff, then such a decision must come from the Ohio Supreme Court. Until then, we are bound by the decisions of the Loucks and Stevenson cases, supra.

The second assignment of error is as follows:

"The court committed error in sustaining defendant's motion to strike the second amended petition from the files, and in entering up final judgment for the defendant."

Irrespective of the language used to state it, plaintiff's claim is obviously based on defendant's furnishing of a railroad car with allegedly inefficient handbrakes. The plaintiff having failed on the theory of absolute liability, a change by him in the pleadings to a theory of statutory violation or common-law negligence is in no sense a substantial departure from the original claim under applicable Ohio law. A liberal construction of the pleadings is required of courts by Ohio law. I find the majority view in this regard to be excellently stated. I am in complete accord with it and concur in the majority holding that the second assignment of error is well taken.

CARLISLE and GRAY, JJ., of the Fourth Appellate District, and JONES, J., of the Seventh Appellate District, sitting by designation in the Sixth Appellate District.