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instructions he did," as to the factors to be considered by the jury in determining whether the petitioner was an "employee” of the railroad during the performance of the work within the meaning of the Act. The instructions given in effect limited inquiry to the question whether the petitioner was aware that the railroad considered him not to be working for it but for some third

injuries suffered by the plaintiff during the course of his railroad employment as a result of the defendant railroad's negligence.

"The accident here involved occurred upon a spur track which was partly owned by the M. & M. Turpentine Co. The fact that the M. & M. Turpentine Co. had contracted with the defendant railroad to maintain all or a portion of this spur track does not relieve the defendant railroad of its liability to the plaintiff if the plaintiff was injured during the course of his employment with the defendant railroad on the spur track as a direct consequence, in whole or in part, of the defendant railroad's negligence.”

2 The pertinent portion of the court's charge was as follows:

“That the Railroad Company was liable unless the defendant's foreman made it clear to him before he started to work that morning that they were not working for the Railroad, but working on a private track to make some extra money. I think I put it just about that simply, didn't I, to make some extra money. I told you that if the foreman failed to make that disclosure to him, ordered him to go out there and go to work, and put him to work on that private track, the Railroad Company would be liable. I don't see how I can say

it any plainer. Do you have a word that you think I could use to make it any plainer?

"Mr. Rutledge: Your Honor, to make it clear he was working for some third person and not working for the Railroad.

“The Court: Yes sir, that is the word I believe he suggestedthat he was working for some third person. The foreman had to make it clear to him that he was working for some third person and not the Railroad. I thought I said it, but I guess I didn't spell it out as much as he wanted, but I want to make that clear to you. If you find from this evidence he was so advised before he went out there to work, and he went out on his own volition and joined the others to make some extra money, then he was not an employee of the Railroad Company and they would not be liable.” HARLAN, J., dissenting.

362 U.S.

party. But neither the railroad's communication of its concept of petitioner's status to petitioner, nor his acquiescence therein, if shown, is determinative of the issue. Cf. Cimorelli v. New York Central R. Co., 148 F. 2d 575, 578. The parties' characterization is but one factor to be considered among others, see Restatement, Agency 2d, $ 220 (2)(i), and the issue is one for determination by the jury on the basis of all the relevant factors. Baker v. Texas & Pacific R. Co., supra.

Reversed.

MR. JUSTICE FRANKFURTER would dismiss this writ of certiorari as improvidently granted. As the Court's opinion demonstrates, the case solely presents the appropriateness of instructions given by a trial court and the refusal of requested instructions in the light of the unique circumstances of a particular situation. As such it falls outside the considerations which, according to Rule 19 of this Court, govern the granting of a petition for certiorari. See Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 524 (dissenting).

MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITTAKER joins, dissenting.

Since I consider that, except as to the one issue submitted to the jury, there is no evidence in the record tending to establish any of the usual criteria showing an employment relationship between the petitioner and the respondent in connection with this work, I dissent. See Restatement, Agency 2, § 227, Comment a.

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BURLINGTON-CHICAGO CARTAGE, INC., v.

UNITED STATES ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ILLINOIS.

No. 726. Decided April 18, 1960.

178 F. Supp. 857, affirmed.

John E. Lesow for appellant.

Solicitor General Rankin, Acting Assistant Attorney General Beck, Robert W. Ginnane and Carroll T. Prince, Jr. for the United States and the Interstate Commerce Commission, appellees.

PER CURIAM.

The motion to affirm is granted and the judgment is affirmed.

BOGLE ET AL. V. JAKES FOUNDRY CO.

ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF TENNESSEE.

No. 760. Decided April 18, 1960.

Certiorari granted and judgment reversed insofar as it awards a

permanent injunction. Reported below:

Tenn. App.

329 S. W. 2d 364.

Cecil D. Branstetter for petitioners.
Judson Harwood for respondent.

PER CURIAM.

The petition for writ of certiorari is granted. The judgment is reversed insofar as it awards a permanent injunction. Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local Union No. 327 v. Kerrigan Iron Works, Inc., 353 U. S. 968; San Diego Building Trades Council v. Garmon, 359 U. S. 236.

Per Curiam.

362 U.S.

DUSKY V. UNITED STATES.

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

EIGHTH CIRCUIT.

No. 504, Misc. Decided April 18, 1960.

Certiorari granted.
Since the record in this case does not sufficiently support the findings

of petitioner's competency to stand trial, the judgment affirming his conviction is reversed and the case is remanded to the District Court for a hearing to determine his present competency to stand

trial, and for a new trial if he is found competent. Pp. 402–403. 271 F. 2d 385, reversed.

James W. Benjamin for petitioner.
Solicitor General Rankin for the United States.

PER CURIAM.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Upon consideration of the entire record we agree with the Solicitor General that "the record in this case does not sufficiently support the findings of competency to stand trial,” for to support those findings under 18 U. S. C. § 4244 the district judge "would need more information than this record presents." We also agree with the suggestion of the Solicitor General that it is not enough for the district judge to find that “the defendant [is] oriented to time and place and [has] some recollection of events," but that the "test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.”

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In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner's competency as of more than a year ago, we reverse the judgment of the Court of Appeals affirming the judgment of conviction, and remand the case to the District Court for a new hearing to ascertain petitioner's present competency to stand trial, and for a new trial if petitioner is found competent.

It is so ordered.

IZZO v. ILLINOIS.

APPEAL FROM THE SUPREME COURT OF ILLINOIS.

No. 772, Misc. Decided April 18, 1960.

Appeal dismissed and certiorari denied.

PER CURIAM.

The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.

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