243 U.S. 36
P. J. McCLUSKEY,1 as Administrator of the Estate of Gunder Nordgard, Deceased, Plff. in Err.,
MARYSVILLE & NORTHERN RAILWAY COMPANY and Stimson Mill Company.
Argued January 30 and 31, 1917.
Decided March 6, 1917.
[243 U.S. 36, 37] Messrs. John T. Casey, George F. Hannan, and Charles R. Pierce for plaintiff in error.
Messrs. E. C. Hughes, Maurice McMicken, Otto B. Rupp, and H. J. Ramsey for defendants in error.
Mr. Chief Justice White delivered the opinion of the court:
This suit was brought under the Employers' Liability Act to recover damages resulting from injuries suffered by Nordgard while in the employ of the defendant railway company. The trial court directed a verdict for the defendants on the ground that there was no evidence tending to show that the defendants and Nordgard were engaged at the time of the accident in interstate or foreign commerce, and the case is here on writ of error to secure a reversal of the action of the court below, affirming the judgment entered by the trial court, dismissing the suit. 134 C. C. A. 415, 218 Fed. 737.
There are the facts: The defendant Stimson Mill Com- [243 U.S. 36, 38] pany was engaged in the logging and lumber business and carried its logs on its own logging railroad, the Marysville & Northern Railway, from timber land owned by it in Washington to a point near Marysville in that state, where they were dumped into the waters of Puget Sound. Part of the logs were thereafter sold to mills located on the sound and the balance were rafted and taken by tugs to the Stimson Company's mills at Ballard, Washington, where they were manufactured into timber, which was thereafter sold, about 20 per cent in local markets and the remainder in other states and countries. The logs which were sold after they had been carried to tidewater by the railroad were towed away by the purchasers to their mills or places for storage, and part of them were subsequently resold for piling or poles to purchasers both within and wthout the state. Nordgard was a brakeman on the logging railroad, and suffered the injuries for which he sued while engaged in unloading logs from the cars at tidewater.
The conclusion of the court below that, under these facts, the defendants were not engaged in interstate or foreign commerce when the injuries were suffered, was based upon the decisions in Coe v. Errol, 116 U.S. 517 , 29 L. ed. 715, 6 Sup. Ct. Rep. 475, and The Daniel Ball, 10 Wall. 557, 19 L. ed. 999, from which the following quotations were made:
After pointing out that these rulings had not been modified, but, on the contrary, had been reaffirmed by the subsequent cases relied upon by the plaintiff in error (Texas & N. O. R. Co. v. Sabine Tram Co. 227 U.S. 111 , 57 L. ed. 442, 33 Sup. Ct. Rep. 229; Railroad Commission v. Texas & P. R. Co. 229 U.S. 336 , 57 L. ed. 1215, 33 Sup. Ct. Rep. 837; Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498 , 55 L. ed. 310, 31 Sup. Ct. Rep. 279; Railroad Commission v. Worthington, 225 U.S. 101 , 56 L. ed. 1004, 32 Sup. Ct. Rep. 653), the court said:
The conclusion of the court below that the defendants were not engaged in interstate or foreign commerce when the accident occurred is, we think, clearly demonstrated by the reasoning by which it sustained its conclusion and the authorities upon which it relied as above stated, and its judgment should be affirmed.
Before concluding we observe that, in view of the stipulation of the parties in the court below, agreeing to the substitution as plaintiff in error of the administrator of Nordgard, who died while the cause was there pending, the motion to dismiss on the ground that the writ of error was wrongfully allowed, and that the administrator is not a proper party, is based upon a mere irregularity which was waived.
[ Footnote 1 ] Appearance of P. J. McCluskey, administrator of the estate of Gunder Nordgard, deceased, filed and entered November 8, 1915, as the party plaintiff in error herein.