Harrington v. Industrial Commission

This opinion is on rehearing. Plaintiff brought certiorari to the Industrial Commission to review an order refusing to take jurisdiction of a claim for compensation for the death of H.M. Harrington which death was caused by an accident which occurred in the course of employment. The death was caused by a truck, not operated by the railroad, which struck Harrington while he was crossing a public highway to open gates in order to permit a switching crew to enter an industrial siding. Recovery under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, was, therefore, in any event precluded. The detailed facts will be more illuminating if the reader has in mind the questions presented by them.

The questions are:

I. Are there any different tests to determine whether an employee of a railroad at the time he was injured was working in inter- or intrastate commerce from those laid down by the Federal courts in applying the Federal Employers' Liability Act when the said Act is not applicable as in this case?

II. If not, was the decedent at the time of his injury working in intrastate or interstate commerce, according to the tests laid down in rulings under the Federal Employers' Liability Act?

III. If he was working in interstate commerce, can the Utah Compensation Act apply because the case is not covered by the Federal Employers' Liability Act?

Posing these three questions we state the detailed facts. The defendant railroad company, operating between Salt Lake City and Payson, Utah, employed more than three employees and had complied with all the provisions of the Workmen's Compensation Act of Utah (Rev. St. 1933, 42-1-1 et seq.).

On February 9, 1937, deceased was working as a brakeman on a train of seventeen cars operated by defendant south bound between Salt Lake City and Provo, Utah. The train included a carload of interstate freight, to wit, a car of scrap paper billed and being transported in interstate commerce from Salt Lake City to Kalamazoo, Michigan, and a car of poultry feed originating at Salt Lake City and being transported to American Fork where the defendant railroad company was to deliver the car to the Utah Poultry Company at its place of business in that town. By well recognized principles laid down by the federal courts, it is admitted that the inclusion of the interstate car made the whole train interstate and the handling of the interstate train interstate commerce.

The Utah Poultry Company and the Chipman Mercantile use the same industrial track and siding. There is a gate which had to be unlocked and opened to permit the car of feed to enter the private premises of the companies above named. It was while Harrington was crossing the street to open this gate that a truck coming along the highway struck him and caused his death. It remains to follow his movements before this happening in order to present a proper basis for a conclusion. When the interstate train arrived at the town of American Fork, the crew thereof, consisting of Harrington and his fellow employees, detached the engine and the car of poultry feed from the train and moved down the main line about one-half mile, near the American Fork station, and stopped it there temporarily. The engine, then detached, moved into the house or station track, and was coupled onto a car of coal which had stood there two or three days. This coal car was moved out to the main line and placed in a position where, when its brakes were released, it rolled by gravity down to the feed car which, as before stated, had been left on the main track. After lining up the switch to permit the coal car to roll down as described, Harrington walked east along the street and was crossing the street on errand bent to open the gates when he was struck and injured. It is conceded that he was to open the gates in order to permit the engine to enter the industrial siding of the Chipman Mercantile Company and Utah Poultry Company. The engine was to go into the industrial track in order to move two cars which were spotted there. It is a fair intendment from the whole situation that those last two cars were to be moved so that the feed and coal cars could be moved to a point farther on in the siding than the two cars there spotted. Otherwise, there appeared to be no necessity of moving the said two cars. With these facts in mind the first question may be considered. The question may be stated as follows: Is the Industrial Commission, in determining whether it has jurisdiction under Sec. 42-1-89, R.S. Utah 1933, in an application for compensation required to apply the same tests of whether an employee is engaged in interstate or intrastate commerce that the courts have laid down to give the employee engaged in the railroad industry protection under the Employers' Liability Act?

The courts have gone far to hold a particular act interstate commerce so as to give the employee the benefit of the Federal Employers' Liability Act. Where in no way the employee can take advantage of the Employers' Liability Act, as in this case, because of lack of negligence on the part of the railroad, should there be a different standard of determining whether or not the work in which the employee was engaged at the time of the accident was interstate commerce? We think not. The standards and tests laid down by the courts for the determination of what is an interstate commerce act for purposes of ascertaining whether the Employers' Liability Act applies must also determine whether the Commission has jurisdiction under Section 42-1-89, R.S. Utah 1933. When the employee asserts negligence on the part of the railroad, he receives the benefit of decisions which hold such an act as Harrington was engaged in at the time of the accident to be interstate commerce. Because there was no negligence, the dependents of Harrington cannot take the position that the act was an intrastate act. We cannot give an act the aspect of interstate commerce for the purpose of the Federal Employers' Liability Act and the same act the aspect of intrastate commerce for the purposes of giving the Industrial Commission jurisdiction when the Employers' Liability Act cannot apply. Section 42-1-89 reads as follows:

"The provisions of this title shall apply to employers and their employees engaged in intrastate and also in interstate and foreign commerce for whom a rule of liability or method ofcompensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce." (Italics added).

It is abstruse and involved. As drafted it was undoubtedly intended to enable a definite horizontal separation of those employees "connected with intrastate work" when their work was clearly separable and distinguishable from interstate work, not according to a test which depended upon the nature of the particular work the employee was doing at the time of the accident, but by a test of whether their regular work was connected only with intrastate commerce. The theory was that an employer engaged in both intrastate and interstate commerce (or his insurer) should be able to count before hand and clearly classify those employees engaged entirely, definitely, and regularly in intrastate commerce. The section was never intended to give the Commission jurisdiction of a case where the employee might at one moment be engaged in intrastate and the next moment in interstate commerce, just because at the time of accident his work happened to be intrastate. But alas, the courts early construed this section so as to make the nature of the act at the time of the accident the test of whether the employee was engaged in intrastate or interstate commerce. The closest cases to the other theory are Miller v. United Fuel Gas Co., 88 W. Va. 82,106 S.E. 419; Suttle v. Hope Natural Gas Co., 82 W. Va. 729,97 S.E. 429; Powers v. Murray, 266 Mich. 688, 254 N.W. 559.

In this jurisdiction we have made the work at the time of the accident the test. Roach v. Los Angeles S.L.R. Co., 69 Utah 530,256 P. 1061; Denver R.G.W.R. Co. v. Industrial Comm.,60 Utah 95, 206 P. 1103; Utah Rapid Transit Co. v. IndustrialComm., 59 Utah 232, 204 P. 87; Conway v. Southern Pac. Co.,67 Utah 464, 248 P. 115, 49 A.L.R. 1316; Southern Pac. Co. v.Industrial Comm., 71 Utah 248, 264 P. 965. The rule that the nature of the work at the time of the accident governs the classification seems deeply rooted here and elsewhere. Since, therefore, the test of whether the employee is in the intrastate or interstate field depends on the character of the act he is doing at the time of the accident the question arises, can an act which is characterized as interstate commerce for the purpose of giving the employee a recovery for negligence under the Federal Employers' Liability Act be characterized differently as intrastate work so as to make the Workmen's Compensation Act applicable? Certainly the act of hauling a mixed train of intrastate and interstate cars cannot be separated as to interstate and intrastate work. It is all interstate. But it is arguable that in certain cases, including the instant case, although the deceased was at the time of the accident engaged in interstate work, so far as the protective application of the Federal Employers' Liability Act is concerned, because it was all incidental to the interstate function of the ultimate spotting of an intrastate car taken from an interstate train, yet the intrinsic quality of the act was intrastate. In other words, while the courts endeavored to go as far as possible to find an act a part of interstate commerce, so as to bring all employees possible under the protection of the Federal Employers' Liability Act, and thus characterize acts in quality intrastate as interstate because incidentally connected or reasonably approximate to the work of interstate movement, yet if there was no negligence of the interstate employer involved and therefore no reason for extending the protection of the Liability Act, the work at the time of the accident being in quality intrastate would, so far as compensation is concerned, be considered as intrastate work. We fear such classification would be illegal and bring about great confusion. Mr. Justice Brandeis, in his dissenting opinion in the case of New York Central R. Co. v. Winfield,244 U.S. 147, 37 S. Ct. 546, 61 L. Ed. 1045, L.R.A. 1918C, 439, Ann. Cas. 1917D, 1139, concluded that an act in interstate commerce, not covered by the Federal Employers' Liability Act because there was no negligence, was compensable under the New York compensation act (Consol. Laws, c. 67) as if it had been purely intrastate work. We might well wish the Supreme Court of the United States had held with Mr. Justice Brandeis. But the majority of the court was the other way. The court held that even if Congress did not cover all situations wherein an accident occurred, but only those with a negligence foundation, it nevertheless intended to occupy the field of regulating the matter of an employee's rights for injury while engaged ininterstate commerce. Hence the jurisdiction of the states, by such expression of congressional will to preempt the field, was ousted. And this is the reason why the phrase "for whom a rule of liability or method of compensation has been or may be established by the congress" was inserted in the State Act (section 113) as part of the description of the class of employers carrying on both kinds of commerce who must respond for compensation only for accidents occurring in intrastate work. Certainly if the Supreme Court of the United States refused to permit the state compensation law to apply to an accident in interstate commerce, not covered by the Federal Employers' Liability Act, it is difficult to see how that principle could be circumvented by calling an act denominated as interstate commerce for purposes of the Federal Employers' Liability Act, an intrastate act for purposes of making the state compensation act apply. If the Federal Employers' Liability Act completely occupies the field of regulation of employers' obligations to employees for accidents occurring in interstate commerce, then the test of interstate commerce for the purpose of ascertaining the extent of that field over which the Employers' Liability Act operates to the exclusion of the state compensation acts must be the same as is laid down by the courts when a workman sues under the Federal Employers' Liability Act. Mr. Justice Brandeis did not attempt to place his dissent on the basis that an act found to be interstate by the tests used when the Federal Employers' Liability Act was invoked should be considered intrastate when it was not covered by said act. He took a sounder and broader position. He thought that even though an interstate act, since it was not specifically covered by the Employers Libility Act because no negligence was involved, it should be held that Congress had not intended to cover or legislate in regard to that situation and that Congress had not preempted that part of the field of employer-employee relationships in interstate commerce. He recognized that the state's jurisdiction to legislate in matters of local concern in interstate commerce adheres until Congress speaks on the subject matter. He then took the position that the subject matter in regard to which Congress spoke when it passed the Federal Employers' Liability Act was on the employer's liability fornegligence to its employee injured by reason of suchnegligence while engaged in interstate commerce. The majority of the court took the position that the subject matter in regard to which Congress spoke was the total subject matter of the employer's liability in case of injury suffered by an employee engaged in interstate commerce, regardless of whether it occurred by negligence of the employer or some third party or whether it was caused by no negligence. The fact that there would be some situations in which the employee could not recover because his master was not negligent did not prevent Congress from having entered and spoken regarding the complete field of liability of the employer for injury to his employee. Whether or not we agree with this conclusion we are bound by it.

Having concluded that there is no different test as to what constitutes interstate commerce when determining whether the Industrial Commission has or has not jurisdiction from that which pertains when recovery is sought under the Federal Employers' Liability Act, we pass to the next question, namely, whether Harrington was at the time of the accident engaged in interstate or intrastate commerce.

We have seen that the act he was engaged in at the time of the accident determines this question. At the time he was injured he was in the act of proceeding toward the gates which he intended to open in order to permit the engine to enter so that it might temporarily remove the two cars standing on the siding which were an obstruction to the final spotting of the feed car. There is no dispute that Harrington's acts in relation to the whole train of cars, which was given an interstate quality by virtue of the inclusion of one interstate car, constituted the conduct of interstate commerce. Roberts Federal Liability of Carriers, Sec. 742; Zenz et al. v. Industrial Acc. Comm., 176 Cal. 304,168 P. 364, L.R.A. 1918D 423; Baker v. Southern Pac. Co. et al.,184 Cal. 357, 193 P. 765.

There should be no dispute that the taking out of the feed car and all acts performed incidental to finally spotting it still retained the quality of interstate commerce. The mere fact of separating the intrastate car from the interstate train by the crew in charge of the interstate train does not make all acts thereafter in respect to such intrastate car necessarily intrastate commerce, especially if those acts are performed by the crew which has charge of the interstate train, and part of its duties is to bring the intrastate car portion of the interstate train to such a position of rest that subsequent movement of said car ceases to be an interstate movement. NewYork Central H.R.R. Co. v. Carr, 238 U.S. 260, 35 S. Ct. 780,59 L. Ed. 1298; Roach v. Los Angeles S.L.R. Co., 69 Utah 530,256 P. 1061, on second appeal 74 Utah 545, 280 P. 1053.

There seems to be little doubt that if Harrington had not come from finishing an operation which involved the movement of the coal car which had concededly lost its interstate character (if it had while so loaded with coal previously had an interstate character) or if his moving to open the gate had not been for the purpose of permitting the moving of two intrastate cars already spotted on the siding, but instead had been in the transition from an act last dealing directly with the feed car to the act of opening the gate to permit the feed car to be switched into the siding, there would be no question about his being, at the time of the accident, engaged in interstate commerce. But it is contended that because he diverted the intrastate coal car (so as to make it a part thereafter of the movement of the feed car, so that the two would move together), and because the last thing he did pertained to the coal car, and because he was on his way to open the gate for the immediate purpose of permitting two intrastate cars to be moved when he was hit, we must hold that he was at the time he was struck engaged in intrastate commerce. But acts in reference to the coal car were for the purpose of coupling it with the feed car so they could both move together to the place where they were to be unloaded. The acts in reference to the coal car were finished. Harrington was at the time of the accident in the progress of doing a preliminary act necessary to accomplish a still further preliminary act of moving two intrastate cars which were obstacles to the movement of the feed car to the final place of spotting where it would cease to move in interstate commerce and rest as an intrastate car. All these necessary preliminary movements were a part of the switching operation of the still interstate feed car. As so aptly stated by Mr. Chief Justice Folland in his dissenting opinion to the court's original opinion in this case, 96 Utah 32, 83 P.2d 270,276:

"It was also conceded there could be no controversy in this case if the train crew had been engaged exclusively in spotting the feed car, that the whole transaction would have to be characterized as interstate. The question arises because after cutting the feed car from the interstate train and before spotting it the train crew received orders to also spot a coal car which had been on the house track for two or three days. The switching of the two cars already spotted was a mere incident to the spotting of the feed car and the coal car. But for the spotting of the feed car and the coal car there would have been no necessity to move the two cars already on the house track. They were in proper place and were not yet ready to be taken away. All movements in the switching operation had been accomplished up to the point of moving out the two spotted cars so that the feed car and the coal car could be placed north of them. In order to move these cars out and the others in, it became necessary to open the gate. While approaching the gate, Harrington was fatally injured. To finish the movement would have required the engine to proceed north through the open gate, attach the two cars, draw them out to the main line, couple on to the coal car and feed car, draw the four cars south on the industrial track past the switch, then push them north on the same track, leaving the cars in this position, the feed car farthest north, the coal car next, and the two other cars returned to their former position. It is perfectly apparent that the opening of the gate and movement of the two spotted cars was merely incidental to the proper placing of the feed car and the coal car."

We conclude that the principles laid down by the federal cases which are binding on us compel us to hold as a matter of law that Harrington at the time of the accident was engaged in interstate commerce.

The third question is whether, even though an employee is at the time of injury engaged in interstate commerce, the Industrial Commission should not have jurisdiction of the claim if the case does not come within the purview of the Federal Employers' Liability Act. This question seems to be settled by the majority opinion in the case of New York Central R. Co. v. Winfield, supra. What has been said in reference to that case under question one above is applicable here. While there may be much to be said for the dissenting opinion of Mr. Justice Brandeis we are bound by the majority opinion.

In conclusion, therefore, we must hold that the Industrial Commission was without jurisdiction and hence its order dismissing the application for compensation is affirmed.

McDONOUGH, J., concurs.