HARLAN, J., dissenting.

356 U.S.

such others are "agents" of the employer within the meaning of § 1 of FELA.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

MR. JUSTICE CLARK concurs in the result, believing that for purposes of the FELA, the Belt Railway was performing a nondelegable duty of respondent's at the time of petitioner's injury.

MR. JUSTICE WHITTAKER, believing that petitioner was not only respondent's employee but, in the circumstances of this case, was also its passenger at the time and place in question and that respondent's franchised carrier responsibilities to him as its passenger were nondelegable, concurs in the result of this opinion.

MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER joins, dissenting.

This case is a further step in a course of decisions through which the Court has been rapidly converting the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60 (and the Jones Act, which incorporates the FELA, 41 Stat. 1007, 46 U. S. C. § 688), into what amounts to a workmen's compensation statute.

This process recently gained marked momentum with. Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524, 559, decided at the 1956 Term, where the Court in effect established a "scintilla" rule in these cases for judging the sufficiency of the evidence on the issue of “causation.” In subsequent decisions that rule has been extended, sub silentio, to cover also the issue of "negligence.' More

"1

1 Webb v. Illinois Central R. Co., 352 U. S. 512; Ferguson v. Moore-McCormack Lines, Inc., 352 U. S. 521; Shaw v. Atlantic Coast Line R. Co., 353 U. S. 920; Futrelle v. Atlantic Coast Line

326

HARLAN, J., dissenting.

recently in Kernan v. American Dredging Co., 355 U. S. 426, decided a few months ago, the Court still further expanded these enactments to embrace a concept of absolute liability for violation of any statutory duty occasioning injury to one entitled to sue under them. And today we are told that ". . . when a railroad employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are 'agents' of the employer within the meaning of § 1 of FELA." This is held to be so even though it has long been customary in railroading for carriers to delegate to others activities such as the switching operation here, see Fort Worth Belt R. Co. v. United States, 22 F. 2d 795, and notwithstanding that under traditional common-law concepts those performing such specialized activities would be regarded as independent contractors. See, e. g., Brady v. Chicago & G. W. R. Co., 114 F. 100, 108-112; Moleton v. Union Pacific R. Co., 118 Utah 107, 114-115, 219 P. 2d 1080, 1084.

In light of the FELA and its legislative history it is difficult to regard any of these developments as other than the products of freewheeling. The FELA ". . is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has

R. Co., 353 U. S. 920; Deen v. Gulf, Colorado & S. F. R. Co., 353 U. S. 925; Thomson v. Texas & P. R. Co., 353 U. S. 926; Ringhiser v. Chesapeake & O. R. Co., 354 U. S. 901; McBride v. Toledo Terminal R. Co., 354 U. S. 517; Gibson v. Thompson, 355 U. S. 18; Stinson v. Atlantic Coast Line R. Co., 355 U. S. 62; Honeycutt v. Wabash R. Co., 355 U. S. 424; Ferguson v. St. Louis-San Francisco R. Co., 356 U. S. 41; Butler v. Whiteman, 356 U. S. 271.

2 Although the Court in footnote 2 of its opinion refers to the jury's special finding that Belt Railway was under the "control and supervision" of respondent, I do not understand that any reliance is placed upon that finding here. It seems enough to say that this finding was without support in the evidence, as the state appellate court held.

HARLAN, J., dissenting.

356 U.S.

imported into those terms." Urie v. Thompson, 337 U. S. 163, 182. See also dissenting opinions in Rogers v. Missouri Pacific R. Co., supra, at 524, 538-539, 559, 563-564; and in Kernan v. American Dredging Co., supra, at 441, 451-452. The only such qualifications which Congress has yet seen fit to enact are those effected by §§ 3 and 4 of the Act, modifying or abolishing the common-law defenses of contributory negligence and assumption of risk. 35 Stat. 66, 45 U. S. C. § 53; 35 Stat. 66, as amended, 45 U. S. C. § 54. More particularly, when a well-known legal term like "agents" is used in legislation, it should be taken as carrying its ordinary meaning unless the statute indicates the contrary. Cf. Hull v. Philadelphia & R. R. Co., 252 U. S. 475, 479. The principle of "accommodating scope" to which the Court resorts for justification of the expansive meaning now given that term is, as applied here, a new rule of statutory construction of which I have not been aware until today.

I must dissent.

Per Curiam.

JUNG ET AL. v. K. & D. MINING CO., INC., ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 619. Decided April 28, 1958.

On May 10, 1955, the Federal District Court dismissed petitioners' first amended complaint in this case and granted petitioners 20 days from that date to file an amended complaint. On May 27, 1955, the Court overruled petitioners' motion to vacate that order but granted petitioners leave to file an amended complaint within 20 days from that date. Petitioners did not file an amended complaint; but, on March 25, 1957, filed a paper electing to stand on their first amended complaint. On the same day, the Court dismissed the cause of action. On April 16, 1957, petitioners filed notice of appeal "from final judgment entered in this action on March 25, 1957." The Court of Appeals held that the District Court's order of May 27, 1955, became its final judgment when petitioners failed to file an amended complaint within the 20 days allowed thereby, and it dismissed the appeal as untimely. Held: The final judgment in the case was the District Court's order of March 25, 1957, dismissing the cause of action, and the appeal was timely under Rule 73 (a) of the Federal Rules of Civil Procedure. Pp. 335-338.

246 F. 2d 281, reversed and cause remanded.

Zeamore A. Ader for petitioners.

Samuel J. Wettrick and Floyd F. Shields for respond

ents.

PER CURIAM.

Petitioners seek our writ of certiorari to review the judgment of the Court of Appeals dismissing their appeal as untimely.

The facts are undisputed. Petitioners brought this action to recover the purchase price of securities alleged

to have been worthless and fraudulently sold to them by respondents in violation of § 12 of the Securities Act of 1933, as amended (48 Stat. 84, 15 U. S. C. § 771), and of § 10 (b) of the Securities Exchange Act of 1934, as amended (48 Stat. 891, 15 U. S. C. § 78j (b)). Respondents moved to dismiss petitioners' first amended complaint for failure to state a claim upon which relief could be granted. On May 10, 1955, the District Court sustained the motion, dismissed the complaint, and granted petitioners "twenty days from this date within which to file an amended complaint." On May 27, 1955, petitioners moved to vacate the order of May 10 dismissing the first amended complaint or, in the alternative, to extend the time to file an amended complaint. On that date (May 27, 1955) the Court overruled petitioners' motion to vacate the order of May 10, but granted leave to petitioners to file an amended complaint within 20 days from May 27, 1955. Petitioners did not file an amended complaint. On March 25, 1957, petitioners filed an instrument in the case by which they elected to stand on their first amended complaint. On that day (March 25, 1957) the Court ordered that "this cause of action be and it hereby is dismissed without costs." On April 16, 1957, petitioners filed notice of appeal "from final judgment entered in this action on March 25, 1957." Respondent moved in the Court of Appeals to dismiss the appeal as untimely. The Court of Appeals, holding that the order of May 27, 1955, became the District Court's final judgment in the case when petitioners failed to file an amended complaint within the 20 days thereby allowed for that purpose, sustained the motion and dismissed the appeal of April 16, 1957, as not taken within 30 days from the entry of the judgment. 246 F. 2d 281.

We think that the District Court's order of May 27, 1955, denying petitioners' motion to vacate the order of