William J. Brennan, Jr.

“ The respondent's manager testified on direct examination that three of its substations were built by the respondent's own construction and maintenance crews. When pressed on cross-examination, however, his answers left his testimony in such doubt as to lead the trial judge to say, 'I understood he changed his testimony, that they had not built three.' But the credibility of the manager's testimony, and the general question whether the evidence in support of the affirmative defense presented a jury issue, became irrelevant because of the interpretation given § 72-111 by the trial judge. ”

“ In striking respondent's affirmative defense at the close of all the evidence [3] he ruled that the respondent was the statutory employer of the petitioner only if the construction work done by respondent's crews was done for somebody else, and was not the statutory employer if, as the proofs showed, the crews built facilities only for the respondent's own use. 'My idea of engaging in the business is to do something for somebody else. ”

“ We think that in the circumstances of this case the federal court should not follow the state rule. It cannot be gainsaid that there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts. In Herron v. Southern Pacific Co., supra, the trial judge in a personal-injury negligence action brought in the District Court for Arizona on diversity grounds directed a verdict for the defendant when it appeared as a matter of law that the plaintiff was guilty of contributory negligence. ”

“ The respondent argues that this state-court decision governs the present diversity case and 'divests the jury of its normal function' to decide the disputed fact question of the respondent's immunity under § 72-111. This is to contend that the federal court is bound under Erie R. Co. ”

“ Federal practice was followed in Gorham v. Mutual Benefit Health & Accident Ass'n, 4 Cir., 1940, 114 F.2d 97; Diederich v. American News Co., 10 Cir., 1942, 128 F.2d 144; McSweeney v. Prudential Ins. Co., 4 Cir., 1942, 128 F.2d 660; Ettelson v. Metropolitan Life Ins. ”