Hamilton v. Louisiana Ry. & Nav. Co. ( 1927 )

OPINION ON REHEARING'

WESTERFIELD, J.

A reconsideration of this case convinces us of the error of our former decrée.

Will Hamilton, the plaintiff, an ignorant negro laborer, was employed by the defendant railroad and at the time of the accident was engaged in piling up cross-ties destined for use in connection with the repair of a switch track belonging to the defendant. Much has been said in argument, and, in brief, pro and con,. as to the use of the switch track as establishing its character as an instrumentality of interstate commerce. We will assume that it was, and that all laborers and others engaged in its repair were engaged in interstate commerce. What connection had Will Hamilton with the repair of the switch track? The day before he was injured he helped place some crossties in position on the track. What he did the day before is, we submit, of no consequence, for the true test of whether the Federal or state act applies in his occupation at the time of, indeed, at the moment of, his injury.

“Every common carrier by railroad, while in commerce between any of the several states or territories * * * shall he liable for damages to any person suffering injury while he is employed by such carrier in such commerce.” (Italics ours.)

Federal Act, Sec. 1.

“Giving the words ‘suffering injury while he is employed by such carrier in such commerce’ their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries accruing when the particular service in which the employee is engaged is a part of interstate commerce. * * * That he was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce is immaterial under the statute, for by its terms the true test is the nature of the work being done at the time of the injury.” I. C. R. R. Co. vs. Behrens, 233 U. S. 473.

The ultimate question therefore is, was Hamilton’s occupation at the time he was injured so closely related to interstate commerce as to form a part of it? It must be conceded that one who repairs an interstate switch track is employed in interstate commerce, with certain qualifications which need not be noted here. But is the laborer who carries the material for the repair of the track, so engaged? If the laborer who transports the crossties a short distance and places them in a convenient position for use is engaged in interstate commerce, what about the drayman* who transports the ties a longer distance and places them in position for the laborer to take them up? And what of the manufacturer? The answer is to be found in the decisions of the courts or, as Sir Edward Coke puts it, “in the gladsome light of jurisprudence”.

At the outset we disclaim any intention, and less desire, to indulge in a comprehensive review of the adjudged cases involving interstate commerce. In the first place we are too old, and though we attained the normal expectancy of life, death would inevitably find us with our pen poised and our task incomplete. No subject of constitutional law has received more attention, and, concerning which more has been written than has been devoted to a consideration of what is and what is not interstate commerce, involving as it does vital principles of our dual system of government. A veritable Sargasso Sea of printers’ ink which the troubled mariner once embarked finds himself without compass to guide him into the clear waters- of judicial consistency and legal certainty.

It is no reflection upon the learning and genius of the gentlemen who have contributed to this vast subject of jurisprudence to say that the jurisprudence can not be reconciled and no rule or formula free from confusion in application has yet been devised. The difficulty arises ex necessitate rei.

Chief Justice Marshall in Brown vs. Maryland, 12th Wheat 419, in speaking of the power of Congress over foreign commerce and its interference with the acknowledged power .of the states over their domestic affairs, said:

“The power and the restriction on it, though quite distinguishable when they do not approach each other, may yet when (like) the intervening colors between black and white, approach so nearly as to perplex the understanding, .as colors perplex the vision, in marking the distinction between them. Yet, the distinction exists and must be marked as the cases -arise. Until they do arise it might be premature to state any rule as being universal in. its application.”

Nearly one -hundred years later in the case of Industrial Accident Commission vs. Davis, 259 U. S. 182, the same court, re ferring to the relation of the employment to interstate commerce as determining the application of the Federal Employers’ Liability Act, said:

Further discussion is unnecessary, though we are besought to declare a standard invariable by circumstances or free from confusion by them in application. If that were ever possible, it is not so now. Besides things do not have to be in broad contrast to have. different practical and legal consequences. Actions take estimation from degrees, and of this, life and law are replete with examples.”

Our effort, therefore, shall be to select a case which by closest analogy fits this case — very much as a purchaser tries on hats in a hat store to get the best fit.

Defendant insists that the case of Pedersen vs. D. L. & W. R. R., 229 N. S. 146, controls. In that case it was held that an employee carrying bolts to be used in the repair of a bridge used by an interstate train was engaged in interstate commerce. The decision was not unanimous, three of the members of the court dissented, but, of course, its authority can not be questioned on that 'account, and, if we did not believe the doctrine of this case to be qualified by subsequent decisions, we should hold it to be decisive of the issues here as counsel contends. The facts are not exactly alike, for example, Pedersen was carrying bolts to the bridge which was under repair while in the case at bar Hamilton was piling up the crossties in a convenient place from which they could thereafter be put in the switch. If it be objected that this is a distinction without a difference, we answer that “trifles light as air” have influenced the courts in most of these cases as has been heretofore indicated. Nevertheless, we would not distinguish this case from the Pedersen case upon the difference in its facts alone.

In I. C. R. R. Co. vs. Behrens, 233 U. S. 473, it was held that a fireman in the employ of a trunk line railway who, as a member of a crew operating a switch engine, used to move cars of all sorts empty and loaded and destined within and without the state, was not engaged in interstate commerce because at the moment he was injured his engine was moving only intrastate cars, there not happening to be any cars in that particular train destined beyond the state, though interstate cars were waiting to be moved by the same engine.

“In short the crew handled interstate and intrastate traffic indiscriminately, frequently moving both at once and at times turning from one to the other. At the time of the collision the crew was moving several cars loaded with freight which was wholly intrastate, and upon completing that movement was to have gathered up and taken to other points several other cars as a step of link in their transportation to various destinations within and without the state.”

In Erie R. R. Co. vs. Welsh, 242 N. S. 303, the employee was held not to be engaged in interstate commerce though his connection with such commerce seems very much closer than in the Pedersen case. Welsh was a yard conductor working under a yardmaster in the employ of the Erie R. R. Just previous to his injury he had made up an interstate train, placing the freight cars in the train, destined for points beyond the state. While on his way to the yardmaster’s office for orders for the further movement of cars in the yard, he was hurt. Moreover the orders which he would have received required him to make up an interstate train. Nevertheless he was denied recovery under the Federal Act. The court in referring to the claim that the slight interval between the making up of the two trains could not affect the interstate character of his employment, said:

“Upon the strength of this it is argued that his act at the moment of his injury partook of the nature of work that, but for' the accidental interruption, he would have been called upon to perform. In our opinion, this view is untenable. By the terms of the Employers’ Liability Act the true test is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act.”

Upon the authority of the Behrens and Welsh cases we are of opinion that the plaintiff in the case at bar was not at the moment of injury engaged in interstate commerce and that consequently not barred from recovery under the state statute.

Our former decree is set aside and it is now ordered that the judgment of the District Court be affirmed.

For the written reasons on file I respectfully dissent.

(Signed) ESMOND PHELPS.