
    Gulf & S. I. R. Co. v. Curtis.
    
    (Division A.
    March 7, 1927.
    Suggestion of Error Overruled April 18, 1927.)
    [113 So. 135.
    No. 26293.]
    1. Commerce;. Sauling empty freight oar from one state to another is “interstate commerce,” beginning when car is designated and begins to move (Federal Employers’ Liability Act [17. 8. Comp. St., sections 8657-8665]).
    Hauling empty freight car from one state to another is “interstate commerce,” within Federal Employers’ Liability Act (U. S. Comp. St., sections 8657-8665), .interstate character of which begins when and not until car has been designated therefor and has begun to move for such purpose.
    2. Commerce. Use of freight cars in interstate commerce held not to begin before svntching crew commenced delivery to other rail-road under interchange agreement (Federal Employers’ Liability Act [U. 8. Comp. St., sections 8657-8665]).
    
      Where empty freight cars for use in interstate commerce were delivered by one railroad to another in accordance with interchange agreement, use in interstate commerce, within Federal Employers’ Liability Act (U. S. Comp. St., sections 8667-8665), held not to begin prior to time switching crew commenced to move them for delivery to other railroad pursuant to orders required before delivery was to be made.
    Appeal from circuit court of Jefferson Davis county.
    HoN. J. Qi. LaNgstoN, Judge.
    Action for Mrs. Buby Curtis, administratrix of the estate of Gfeorge D. Curtis, deceased, against the Gulf & Ship Island Eailroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.'
    
      T. J. Wills, for appellant.
    The jury returned a verdict for fifteen thousand dollars for plaintiff. Defendant appeals alleging that deceased was engaged in interstate commerce; hence the Mississippi prima-facie statute was erroneously invoked.
    The service which this train crew, including the deceased George D. Curtis, was performing was a link in the chain of the movements of the outbound loaded cars moving in interstate commerce from points on the New Orleans Great Northern Eailroad via Columbia and over the Gulf & Ship Island Eailroad to the northern markets and the movement of the empty cars coming from foreign lines to supply the needs of the New Orleans Great Northern in furnishing transportation facilities for shipments destined for points outside of and beyond the state of Mississippi. This movement was but a sector in the circle of the empty foreign cars that were moving into Gulf & Ship Island and New Orleans Great Northern points to be loaded with, freight and consigned back in the direction of their home lines in the transportation system between the states. For cases throwing light on this point, see TV. G. B. R. Co. v. Zachary, 232 U. S. 248, 34 Snp. Ct. Eep. 306; Eureka Pipe Line v. Bollan, 257 XT. S. 265, 42 Snp. Ct. 101; Pedersen v. D. L. & W. B. R. Co., 229 TJ. S. 146, 33 Snp. Ct. Eep. 648; Shanks v. L. L. & W. B. R. Co., 239 U. S. 556, 36 Snp. Ct. Eep. 188; Erie R. R. Co. v. Collins, 253 IT. S. 77, 40 Snp. Ct. Eep. 450; B. & O. S. W. R. R. Co. V. Settle et al., 260 TJ. S. 166, 43 Snp. Ct. Eep. 28.
    It will be observed by the court that every one of the cars here was a foreign car. Not a one of the cars in this movement belonged either to the Gulf & Ship Island Eailroad or the New Orleans Great Northern Eailroad. They were empties belonging to foreign roads. They were being moved to Columbia where nineteen of them were for immediate delivery to the New Orleans Great Northern to be loaded in interstate commerce back home. It is shown that every car so ordered was ordered for the purpose of being loaded in interstate commerce. It is shown that every car delivered to the New Orleans Great Northern by the Gulf & Ship Island Eailroad was loaded and moved in'interstate commerce. It is further shown that the New Orleans Great Northern had a standing order or instructions to the conductor operating the New Orleans Great Northern train into Columbia that on the receipt of these cars they were to be carried from Columbia, Mississippi, to Bogalousa, Louisiana, to the yard for distribution in the fulfillment of orders for cars to be loaded in interstate commerce. Trowbridge v. Kansas City, etc., R. R. Co., 179 S. W. 777, is so nearly like the case at bar that it might be termed a “White Horse” case. See, also, Penn. R. R. Co. v. Knox, 218 Fed. 748; Champlain Co. v. Brottleboro, 260 IT. S. 366, 43 Sup. Ct. Eep. 146; Hughes Bros. Timber Co. v. State of Minn., Adv. Op. 214, 47 Sup. Ct. Eep. 170.
    
      From the authorities above cited the inevitable conclusion must be reached that the movement of the cars was an interstate movement. The appellant being engaged in interstate commerce in making the said movement and the deceased George D. Curtis being employed in making the said movement, the Federal statute applied.
    The Federal statute applying, the Mississippi prima-facie statute is not controlling in this case. The Mississippi prima-facie statute, section 1985, Code of 1906, was before the supreme court of the United States on the question of its constitutionality in the Turnipseed case, 219 U. S. 35^, in which the court held that the statute was constitutional and insofar as it was a rule of evidence in the state of Mississippi in cases tried under the state law, it was applicable. The prima-facie statute was invoked in three cases subsequent to the decision in the Turnip-seed case brought under the Federal Employer’s Liability Act. These cases went to the supreme court of the United States and that court held that the state law had no application to cases brought under the Federal Employer’s Liability Act. See N. 0. & N. E. R. R. Go. v. Harris, 247 U. S. 367; 7. & M. V. R. R. Go. v. Mullins, 249 U. S. 531; N. 0. & N. E. R. R. Go. v. Scarlet, 249 U. S.' 528.
    
      Moimger & Motmger and G. E'. Thompson, for appellee.
    The court correctly ruled that the case was governed by the laws of Mississippi and that the Federal Employer’s Liability Act did not control the case. Curtis was not engaged in interstate commerce. The rule is laid down by the supreme court of the United States in I. G. R. R. Go. v. Behrens, 58 L. Ed. 1051; G. B. & Q. R. R. Go. v. Herrington, 60 L. Ed. 941; Shanks v. Delaware & L. R. R. Go., 60 L. Ed. 436; Minn. & St. P. R. R. Go. v. Winters, 142 U. S. 355, 61 L. Ed. 358; Industrial Accident Commission v. Davis, 66 L. Ed. 888; B. & O. R. R. Go. v. Burtch, 268 U. S. 539, 68 L. Ed. 433; Miss. Gent. R. R. Go. v. Knight, IOS So. 377; Davis v. B. & O. R. R. Go., 10 Fed. (2nd) 140.
    
      “When the question arises whether the federal act applies, the burden is upon the person asserting* it to show that .the facts at the time of the happening abated the original and primary sovereignty of the state and permitted the exceptional and limited power of the federal government.to attach.” 18 E. C. L., Master & Servant, section 316', page 856; L. E. Á. 1915C page 64; 12 A. L. E. 710; Miss. Gent. B. B. Go. v. Knight, -103 So. 377; Du-puis v. La. By. & Nav. Go., 99 So. 709; Kasidha v. L. & N-. B. B. Co., 105' So. 187; Palermo v. Erie B. B. Go., 173 N. T. S. 456.
    We say, therefore, that it is not important how Cnrtis had been previously engaged or what was contemplated, for the future, since nothing for the future had been fixed. The moving of the cars from Mendenhall to Columbia, which was the service in which he was engaged, was,merely putting these cars in a convenient place,.from which they could be taken and used as required, and so we say that we can apply to the case at bar the very words of Judge Hughes in the Herrington case and these words refute the contention of the appellant.
    For other authorities on this question, see: Section 663, Thornton’s Federal Employer’s Liability Act; L. & N. B. B. Go. v. Strange (Ky.), 161 S. W. 239; Palermo v. Erie B. B. Co., 173 N. Y. S. 456. We very strongly rely ■for affirmance upon the case of Miss. Gent. B. B. Go. v. Knight, 103 So. ¡377.
    Argued orally by T. J. Wills, for appellant, and W. D. Mounger and G. E. Thompson, for appellee.
    
      
      Corpus Juris-Cyc References: Commerce, 12CJ, p. 46, n. 29. As to what employees are engaged in interstate commerce within the Federal Employers’ Liability Act, see annotation in 10 A. L. R. 1184; 14 A. L. R. 732; 24 A. L. R. 634; 29 A. L. R. 1207; 18 R. C. L. 852; 3 R. C. L. Supp. 862; 4 R. C. L. Supp. 1218; 5 R. C. L. Supp. 1008.
    
   Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a judgment for damages for the death of the appellee’s intestate, alleged to have been caused by the negligence of the appellant.

The court below instructed the jury in accordance with the state prima-facie evidence statute; and one of the appellant’s contentions there was, and its only contention here is, that this statute has no application, for the reason that the appellee’s intestate was engaged in interstate commerce when injured, and, consequently, the case is governed by the Federal Employers ’ Liability Act (U. S. Comp. St., sections 8657-8665). The case will be stated in so far only as is necessary for a decision of that question.

The Gulf & Ship Island Railroad and the New Orleans Great Northern Railroad are common carriers, engaged in both intrastate and interstate commerce, and have a physical connection at Columbia, Miss., where they deliver cars to each other under an interchange arrangement which requires the former to deliver to the latter “ten box cars and five open cars per day.’-’ Under a custom of railroads to expedite the return of cars to the road by which they are owned, the cars which each of these roads delivered to the other were cars owned by other railroads, and the cars received by each were usually used by it for interstate shipments, the cars received by the New Orleans Great Northern Railroad being usually carried by it to Foxworth, a station on its road in Mississippi, or to Bogalonsa, La., for loading.

George D. Curtis, the appellee’s intestate, was a brakeman on one of the appellant’s extra trains, which ran north daily from Columbia to Mendenhall, Miss., and returned. The train was made up for its trip north at Columbia, and for its trip south at Mendenhall, Miss. On November 30, 1925, the conductor of this train was ordered by the proper railroad official to bring thirty-four empty freight cars from Mendenhall to Columbia. He complied with this order, selecting the cars himself, and they constituted the whole of the train other than the engine and caboose. The conductor’s duty on arriving at Mendenhall, and that which he discharged on the occasion in question, was to place the cars on the track designated therefor, and to report to the station agent the arrival of the train and the cars composing it. Curtis was killed by falling from one of the cars of the train when it was entering the railroad yard at Columbia.

It was the duty of the appellant’s station agent, at Columbia, on the night preceding the day of delivery of cars to the New Orleans Great Northern Railroad, to select the cars to be so delivered, and to leave a list thereof where it could be obtained early the next morning by the appellant’s switching crew, whose duty it was then to take the list and deliver the cars to the New Orleans Great Northern Railroad. * After receiving the report of the conductor of the train, from which Curtis fell and was killed, this agent selected therefrom nineteen cars, and placed the list where it could be found the next morning by the switching crew, and, they delivered the cars the next morning’ to the New Orleans Great Northern Railroad. The bringing of these cars from Mendenhall to Columbia was necessary in order for the -Gulf & Ship Island Railroad to comply with its obligation to deliver cars to the New Orleans Great Northern Railroad the next day.

The hauling of an empty freight car from one state to another is interstate commerce, and the interstate character of such a car begins when, and not until, it has been designated therefor, and has begun to move for the purpose of being put into a train of the cars, or attached to an engine, that would carry it forward on its journey. Leaving out of view the fact that the cars here in question might not have been used by the New Orleans Great Northern Railroad in interstate commerce, under the facts here in evidence their use in such commerce did not begin prior to the time when the appellant’s switching crew commenced to move them for delivery to the New Orleans Great Northern Railroad pursuant to the order of the appellant’s station agent so to do.

Affirmed.  