This action involves a suit for damages for personal injuries. It was tried upon the theory that plaintiff could not recover unless he came under the Federal Employers' Liability Act.
Plaintiff alleged, in substance, that the Oklahoma Railway Company was an interstate carrier of freight and was engaged in interstate commerce; that plaintiff was employed as a conductor of a switching crew for said company, and while in the regular course of his employment received his injuries during a train movement by reason of the negligence of his fellow servants, or the motorman operating the engine for said company.
The defendant company challenged the right of recovery by filing an answer consisting of a general denial, pleas of contributory negligence and assumption of risk, and a prayer for relief by invoking the comparative negligence doctrine applicable to the provisions of the Federal Employers' Liability Act. The answer, in part, was as follows:
"Further answering and without admitting any liability for negligence on its part, but expressly relying upon the allegations hereinabove made, defendant states that, if said plaintiff was injured substantially as alleged in said petition, nevertheless, said defendant is not liable to him forthe full and entire damage sustained by him for the reason thatsaid plaintiff himself was guilty of contributory negligencewhich proximately contributed thereto.
"Wherefore, defendant prays that plaintiff take nothing by his action and that it have judgment for all costs or, in thealternative, that should it be found to have been guilty ofsome negligence that concurred in producing the injuriessustained by said plaintiff, if any, said plaintiff's recoveryherein be limited or diminished by virtue of his owncontributory negligence according to the applicable provisionsof the Federal Employers' Liability Act." (Emphasis ours.)
Plaintiff contends, on rehearing, that his petition stated two causes of action. One at common law and one under the referred to act. With this contention we cannot agree. There is but one cause of action stated, and that action comes under the Federal Employers' Liability Act.
Plaintiff also contends that under the pleadings he was not required to introduce evidence to show that the cause of action came under the Federal Employers' Liability Act. We hold to the contrary view. See Day v. Chicago N.W. Ry. Co. (Ill.)188 N.E. 540. Plaintiff offered evidence on this controlling question, to wit, as to whether the company was engaged in interstate commerce at the time of the accident in question. In view of the uncontroverted records of the company as to the movement of the cars, the evidence was insufficient to bring the case within the Employers' Liability Act, and the trial court should have given the peremptory instruction requested by the defendant company. It was error to refuse this instruction.
It was not necessary to confine the petition to an action under the Federal Employers' Liability Act. Plaintiff could have alleged liability under both the state and federal law and sought to recover under whichever appeared under the evidence to be applicable. This was not done. See Wabash Ry. Co. v. Hayes, 234 U.S. 86, 58 L.Ed. 1226; Pelton v. Ill. Cent. Ry. Co. (Iowa) 150 N.W. 236; Cato v. Atlanta C. A. L. Ry. Co. (S.C.) 162 S.E. 239.
At no stage of the proceedings did plaintiff seek to plead an action under the common law, or present the action in an alternative way in separate counts. There is no incorporation in plaintiff's petition of a count charging a common-law liability. The record clearly shows that plaintiff pleaded and relied for recovery under the Federal Employers' Liability Act, and at no time during the trial was it ever remotely suggested that liability had been pleaded under the common law, nor was the trial court ever presented with the theory that the pleadings should be amended or should be regarded as amended to conform to the proof. It is settled law that parties to an action are bound by the definite theory under which their case or defense is presented to the trial court on appeal. *Page 174 Hunt v. Van Siclen, 136 Okla. 69, 276 P. 182.
We have carefully reviewed the records and briefs, and conclude that the opinion heretofore rendered should be modified to reverse and remand said cause and to permit such further proceedings in said cause not inconsistent herewith, and rehearing should be, and the same is hereby, denied.
OSBORN, V. C. J., and RILEY, BAYLESS, BUSBY, PHELPS, CORN, and GIBSON, JJ., concur. WELCH, J., disqualified and not participating.