Aguirre v. Southern Pacific Co.

Plaintiff brought this action under the Federal Employers’ Liability Act (FELA) (45 U.S.C.A.,

Included in the record are affidavits or declarations by the manager of personnel of PFE, its attorney, and its assistant to the vice president and general manager, Mr. Cranmer; also a deposition by the latter and a deposition of plaintiff, Juan Agmrre. These were offered by defendants, the moving party. From these the following facts appear: Plaintiff was injured on May 25, 1960, while working as a carpenter inside a refrigerator ear located on tracks in the PFE repair yard in Roseville, California. The injury was caused by the falling of a bulkhead in the car. Aguirre was employed by PFE and the work was performed under the direction of his foreman, also employed by PFE.

PFE owns and maintains a fleet of 21,954 refrigerator cars. It lets them to practically all the railroads of the Urnted States. The cars are used to transport by rail perishable fruits and vegetables which require refrigeration or heating while en route. In addition to the letting of cars PFE provides protective services against heat or cold. These are furmshed at stations at various points along the route of travel in 14 states. Such service is by use of ice or mechanical refrigeration or heating. It is rendered by employees hired and paid and wholly controlled by PFE at these stations, all of wMch are owned or leased by PFE. With one exception it does not move its cars or control their movement, either en route or for switch

PFE also owns and lets a number of trailers under contracts with 33 railroads and is presently negotiating with 61 other railroads for the letting of trailers.

Every year PFE sends out representatives to survey growing crops. The purpose of this is to estimate the size and date of harvest of the crop so the number of cars needed and when they will be needed can be estimated. The information thus received is furnished the railroad affected. No separate charge is made for this service. It is included in the rentals per mile for the letting of the cars. Sometimes when a crop is ready for shipment the grower will notify PFE, sometimes he will notify the railroad. Whichever is notified the information is relayed to the other.

PFE was organized as a corporation in December 1906 under the laws of the State of Utah. It was created by defendants Southern Pacific Company (SP) and Union Pacific Railroad Company (UP). Each then owned and now owns 50 per cent of PFE’s corporate shares. Mr. Cranmer avers that prior to the organization of PFE neither of the railroads had performed the functions of PFE described above.

PFE has its own board of directors none of whom are directors of either UP or SP. It has approximately 4,000 employees. Its net assets in 1962 were approximately $148,000,-000. Its net income in that year was $5,000,000. Its places of business are separate from the railroads.

Plaintiff’s sole affidavit in opposition to the motion for summary judgment is that of his attorney. It avers that plaintiff had fully explained the facts and circumstances of the ease to affiant, that affiant believed them to be true, and that under them it was affiant’s opinion that the case was properly brought under FELA; that said opinion was based upon the attorney’s experience in many FELA eases, two of which had reached the Supreme Court. This opinion is a conclusion of law.

The only averments of fact, therefore, which are before us are those in defendants’ affidavits and depositions.

The preliminary questions are whether the issues are determinable upon a motion for a summary judgment under Code of Civil Procedure section 437c and, if so, whether defendants’ moving papers are adequate.

Section 437e provides that where a claim is made by the

The trial court in considering a motion for summary judgment determines only whether a triable issue of fact has been presented. If one has been presented the court is not empowered to determine the issues summarily. Such determination must await trial. (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412 , 417 [ 42 Cal.Rptr. 449 , 398 P.2d 785 ].) In making the “triable issue of fact” determination the court must strictly construe the affidavits of the moving party, liberally construe those of the opposing party. (Eagle Oil & Ref. Co. v. Prentice, supra, at p. 556; Stationers Corp. v. Dun & Bradstreet, Inc., supra, at p. 417.) But properly invoked, the purpose of section 437c is salutary. It “undertakes the expedition of litigation by the elimination of needless trials ...” (Spencer v. Hibernia Bank, 186 Cal.App.2d 702 , 712 [ 9 Cal.Rptr. 867 ], appeal dismissed and certiorari denied 368 U.S. 2 [ 82 S.Ct. 15 , 7 L.Ed.2d 16 ] ; see also Coyne v. Krempels, 36 Cal.2d 257 [ 223 P.2d 244 ].) In the ease last cited the court stated (on p. 262): “The procedure for the entry of a summary judgment provides a method by which, if the pleadings are not defective, the court may determine whether the triable issues apparently raised by them are real or merely the product of adept pleading.” And that case also points out that where the moving party’s affidavits set forth facts sufficient to sustain a judgment in his favor and those facts are uncontroverted by the affidavits of the opposing party, a summary judgment is proper. (Coyne v. Krempels, supra, at p. 263.) In Pacific Inter-Club Yacht Assn. v. Richards, 192 Cal.App.2d 616 , this court said at page 620 [ 13 Cal.Rptr. 730 ]: “ [I]f the opponent’s affidavits raise no genuine issue of material fact, but only create an issue

Plaintiff contends that the California summary judgment procedure is not available in a FELA ease. He cites in support of that proposition two cases brought under the Tucker Act in the Federal Court, United States v. Lindholm, 79 F.2d 784 [ 103 A.L.R 213 ], and United States v. Stevenson, 79 F.2d 788 . But in those eases the court, while expressly recognizing that in an ordinary civil suit the desirability of shortening the procedure by the elimination of unnecessary delays was unquestioned, and while stating that state summary judgment procedure statutes had been recognized as controlling under the Conformity Act (28 U.S.C.A., § 724), held that this rule could not be applied in proceedings by veterans to recover disability payments under war risk insurance as provided by the Tucker Act ( 24 Stat. 505 ). The reason for this ruling becomes clear by reading the provisions of the Tucker Act (recited in the Lindholm decision). That act, in itself, provides a proceeding summary in nature, quite irreconcilable with state summary judgment laws which, if superimposed thereon, would merely cause confusion. No such incompatibility exists in cases brought under FELA, They are merely special statutory tort liability actions. And whenever specific provisions therein do not conflict we perceive no reason why state practice rules should not apply, and it has been so held. (Minneapolis & St. Louis R.R. Co. v. Bombolis (1915) 241 U.S. 211 [ 36 S.Ct. 595 , 60 L.Ed. 961 ].) In Reynolds v. Atlantic Coast Line R. Co. (1952) 196 F.2d 643 , a FELA ease tried in a federal court, a summary judgment issued therein was affirmed on appeal.

Plaintiff next argues that even though. provisions of California ’s summary judgment section may be generally available in FELA cases it was not properly invoked under the facts here which, it is argued, require a jury’s determination. It is true that in FELA cases, as in others, it is only where reasonable men cannot reach differing conclusions on the issues that a judge may take the case from the jury (Baker v. Texas & Pacific R. Co., 359 U.S. 227 [ 79 S.Ct. 664 , 3 L.Ed.2d 756 ]). But whenever all the evidence is so clear that reasonable minds cannot differ as to the legal conclusions which must be drawn therefrom, it is the function of the court and not of the jury to draw such conclusions. (Hicks v. Reis, 21 Cal.2d 654 , 660-661 [ 134 P.2d 788 ]; State of California v. Superior Court, 208 Cal.App.2d 659 , 665 [ 25 Cal.Rptr. 363 ]; 3 Within, Cal. Procedure, Appeal, § 88, p. 2252.) Also when

The problem to which we relate them is the interpretation of PELA (45 U.S.C.A., §§ 51-60) and specifically that portion of section 51 which provides that “Every common carrier by railroad . . . [while engaged in interstate commerce] shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . [or in the. case of death to the employee’s personal representative for the benefit of specified relatives] resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, . . .” or from any negligently defective equipment. Also involved in the discussion to follow is section 55 which provides in part: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void. ...”

Prom a reading of section 51 it will be obvious that if the facts of this case show a cause of action under PELA it can only be because either (a) defendant PPE is a “common carrier by railroad,” or (b) this employee, the plaintiff, at the time of his alleged injury, was, although nominally an employee of PPE, actually employed by SP. Those are the questions to which we address ourselves.

The ease is one of first impression in the California state courts, but the questions stated are not novel. They have been decided in other jurisdictions adversely to plaintiff’s position under similar facts to similar entities (e.g., the Pullman Company in Robinson v. Baltimore & O. R. Co. (1914) 237 U.S. 84 [ 35 S.Ct. 491 , 59 L.Ed. 849 ]; to another refrigeration company, Armour Car Lines, in Ellis v. Interstate Commerce Com. (1914) 237 U.S. 434 [ 35 S.Ct. 645 , 59 L.Ed. 1036 ]; to express companies in Wells Fargo & Co. v. Taylor (1920) 254 U.S. 175 [ 41 S.Ct. 93 , 65 L.Ed. 205 ]; in Missouri, K. & T. Ry. Co. of Texas v. Blalack (1912) 105 Tex. 296 [ 147 S.W. 559 ]; and in Jones v. New York Cent. R. Co. (6th Cir. 1950) 182 F.2d 326 ; and to this very defendant, PFE, in Gaulden

Jones v. New York Cent. R. Co., supra, 182 F.2d 326 , involved an action attempted to be brought under FELA by a messenger employed by Railway Express Agency. He had been injured while getting onto an express car, a part of a train operated in interstate commerce by defendant railroad. The court in affirming a district court decision denying recovery pointed out that the United States Supreme Court as early as 1920, in Wells Fargo & Co. v. Taylor, supra, 254 U.S. at page 187, had held: “In our opinion the words ‘common carrier by railroad, ’ as used in the act, mean one who operates a railroad as a means of carrying for the public,— that is to say, a railroad company acting as a common carrier. ’ ’ In Jones it is also pointed out that this was not only an interpretation of words in their common acceptation but also in the context of FELA and of-similar statutes. It was stated further that FELA, originally enacted in 1908, had been amended by Congress in 1939, during which period express company employees and employees of similar entities in numerous court decisions had been excluded from bringing actions under FELA. This, the court said, indicated an acquiescence by Congress in the courts’ exclusions.

The court in Jones also answered the contention made by plaintiff therein (and by plaintiff here) that if an employee, although not employed by the railroad, was engaged in the work of railroading, he was intended to be covered by the act. It stated (on p. 328) that the answer to that question was to be “found in Robinson v. Baltimore & Ohio R. R. Co., 237 U.S. 84 , 94 [ 35 S.Ct. 491 , 59 L.Ed. 849 ] . . . , in which the court said: ‘We are of the opinion that Congress used the words “employee” and “employed” in the statute in their natural sense, and intended to describe the conventional relation of employer and employee. It was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the act. ’ ’ ’

In Jones the court cites with approval (on p. 328) Gaulden v. Southern Pac. Co., supra, 78 F. Supp. 651 . That case involved, as stated above, this very defendant, PFE. The

The court in Gaulden also addressed itself to the contention made there, and made here, that the protective service contract between SP and PFE made PFE an agency of SP and that therefore SP was the real employer of plaintiff. In denying this contention the court (on p. 656) assumed an agency relationship, but pointed out that the protective service contract was not a contract of employment, that PFE hired its own employees at its own expense; that “No right of control over the manner and means of performance was reserved to the railroads,” this being the determinative factor in ascertaining whether an agent is or is not an independent contractor whose employees do not have a master and servant relationship with the railroad.

Referring to section 55 of the act the court found that there was no evidence of any “duplicitous design to accomplish evasion of the Act” on the part of the railroad. It stated that the facts, on the contrary, showed that PFE had acquired no operating facilities from the railroads; that before its creation SP and UP had contracted for refrigeration cars and protective services from third parties and there was therefore no peeling-off of a function theretofore performed directly by the railroads; that the railroads’ shareholders were distinct entities; that PFE had its own management, its own facilities, its own employees controlled wholly by PFE. Also noted was the fact, likewise appearing here, that PFE rents its cars and provides its services to most, if not all, other railroads in the United States. One other factor was included by Judge Goodman in Gaulden as a

Plaintiff argues as controlling on the question of his status as an actual employee of the railroad, the ease of Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326 [ 78 S.Ct. 758 , 2 L.Ed.2d 799 ]. We see no similarity. There petitioner was an employee of the railroad who was injured by the negligence of employees of an independent corporation which performed switching operations. It was held that said corporation, although an independent contractor, was also an “agent” under a provision of FELA which made a railroad liable to its employees for injuries caused through the fault of “ ‘any of the officers, agents, or employees’ ” of the railroad. It did not hold employees of the independent contractor to be employees of the railroad nor was there anything in the court’s reasoning suggesting such thinking by the court. On the contrary, the opinion stated (on p. 804, 2 L.Ed.2d, 356 U.S. 331) that “the corporate autonomy of the Belt Railway, and its freedom from detailed supervision . . ., are irrelevant. . . .”

Also cited by plaintiff is Eddings v. Collins Pine Co., 140

Plaintiff makes other arguments on appeal. He contends that notice of the hearing of the motion for summary judgment lacked sufficiency by hours, or at most, a day. Nevertheless, he appeared generally, his counsel argued well and ably and claimed no surprise, and twenty days elapsed between the hearing and the court order. Plaintiff points to an earlier motion under section 437e, denied, and he contends

The judgment is affirmed.

Friedman, J., and Regan, J., concurred.