Before BIGGS, Chief Judge, and KALODNER and SMITH, Circuit Judges.
Is the defendant, Fruit Growers Express Company, a "common carrier by railroad" within the meaning of the Federal Employers' Liability Act ("Act")*fn1
If it is, was the plaintiff's decedent, Stephen Hetman, its "employee" within the meaning of the Act at the time he sustained the injuries which led to this action*fn2
The District Court answered these questions in the negative and granted summary judgment in favor of the defendant on the basis of the following stated undisputed facts disclosed by the pleadings, deposition of the decedent, affidavits and exhibits.
On April 22, 1958, the decedent was injured while he was feeding ice into an ice crusher mounted on a truck*fn3 owned and operated by his employer, Rubel Corporation, an independent contractor, in the course of "icing" a refrigerated freight car pursuant to a contract it had entered into with the defendant. Incorporated in 1920, the defendant is engaged in the business of furnishing its 13,900 refrigerator cars and their refrigeration, heat and other protective service to sixty-seven railroads. It also provides the service stated to refrigerator cars owned by others*fn4 It engages independent contractors, such as Rubel to perform the service. It does not engage in the business of transporting cargo or passengers in intrastate or interstate commerce. It does not own any track, rolling stock, or motive power except that used and maintained in its own repair yards.
At the time here relevant it had outstanding 109,121 shares of stock owned by nineteen railroads. Its business has been independently operated, at all times, by its own officers and employees, free of control or direction by any of its railroad stockholders. Its board of directors does not interlock with the boards of its stockholders.
It charges a uniform rate to the railroads for the furnishing of its refrigerator cars. The rate is fixed by the Association of American Railroads.
At the time of the accident no employee of the defendant was present. The defendant had no control over the "icing" operation in which the decedent was employed nor did it attempt to exercise any control. The decedent was employed only by Rubel and was solely under Rubel's control.
On this appeal the plaintiff urges that (1) the defendant is a "common carrier by railroad" because it furnishes its refrigerator cars and servicing operations to common carriers by railroad and is wholly owned by railroads; (2) the "icing" service furnished by Rubel under its contract with the defendant was a non-delegable duty of the defendant, and since § 55 of the Act prohibits a "common carrier by railroad" from delegating its duties by contract, the decedent was, accordingly, an "employee" of the defendant within the meaning of the Act, and (3) the defendant breached its duty to provide the decedent with a "safe place to work" in violation of the Act.
We are of the opinion that the District Court correctly held that the defendant is not a "common carrier by railroad" within the meaning of the Act.
We need go no further than to cite Gaulden v. Southern Pac. Co., 78 F. Supp. 651 (N.D.Cal.1948), aff'd per cur. 174 F.2d 1022 (9 Cir. 1949), where it was held that the Pacific Fruit Express Company, which conducted a business similar in all critical aspects to that of the defendant, here, and which was also wholly owned by railroads, was not a "common carrier by railroad" within the meaning of the Act. It would serve no useful purpose to here restate what was so well said in Gaulden in its analysis and application of the Act or to make repetitious reference to the cases therein cited in support of the court's holding.
It should be noted that a similar result was reached in Moleton v. Union Pacific R.R. Co., 118 Utah 107, 219 P.2d 1080 (1950), cert. den. 340 U.S. 932, 71 S. Ct. 495, 95 L. Ed. 672 (1951).
Further, even assuming, arguendo, that the defendant is a "common carrier by railroad", we are of the opinion that the District Court correctly held that the decedent was not an "employee" of the defendant at ...