Harrington v. Industrial Commission of Utah

I concur in the opinion of Mr. Chief Justice FOLLAND that in this case, according to the tests laid down by the courts in determining whether an act is done in interstate commerce so as to make applicable the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, the decedent was engaged in interstate commerce.

However, it seems to me that one important question of the case has not been touched upon, and that is the question as to whether the Industrial Commission, in determining whether it has jurisdiction under Section 42-1-89, Rev. St. Utah 1933, in an application for compensation, is required to apply the same tests that the courts have laid down to give the employee engaged in the railroad industry extended protection under the Employers' Liability Act.

The courts have gone far to hold a particular act as 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 no 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? I 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 Liability Act applies must be applied to determine whether the Commission has jurisdiction under Section 42-1-89. The interstate employer is in position to say: "What is good for the goose is good for the gander." 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 as interstate commerce. Simply because there was no negligence, the dependents of Harrington cannot take the position that the act was an intrastate act. I hardly think we can 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 under Section 42-1-89. That 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 of compensation 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."

It is abstruse and involved. I think it was 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 intra- 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. To illustrate: If certain employees were altogether regularly engaged in auditing intrastate freight bills, they could be definitely classed as amenable to the jurisdiction of the Commission before an accident occurred, and security for payment of compensation could be provided for. And the case where a powerline or a telephone building is being constructed but not yet ready for use in interstate commerce is another example of a different kind. Shurtliff v. O.S.L.R.Co., 66 Utah 161, 241 P. 1058; 14 A.L.R. 732, Note; State v.Postal Telegraph-Cable Co., 101 Wash. 630, 172 P. 902, reaffirmed, 104 Wash. 693, 176 P. 346.

That this was the meaning of Section 42-1-89 is more strongly apparent when we consider its carefully chosen language. Down to the word "only" the section is descriptive of the class of employers and employees to which the "only" clause applied. A free translation of the section is as follows: When you (the Commission) are dealing with the employer-employee relationship in those cases where the employer is engaged in both sorts of commerce, and a rule of liability or a method of compensation has been established by Congress (all this descriptive of the employer and therefore of the employees engaged by him) take cognizance only of those employees whose connection with intrastate work is such that it may and can be clearly separated from interstate commerce. The section specified not the job the workman happened to be doing at the time of the accident, but that he had to be connected with intrastate work, and this connection had to be clear. The work at which he was employed had to be intrastate — not just the particular act which engaged him at the time of the accident. The work with which he was connected had to be so clearly distinguishable from interstate commerce as to permit one classifying employees as interstate or intrastate to say which field they were connected with. The intrastate work not only may, but shall, be clearly separable from interstate commerce, i.e., shall be independent of any accident. The reason was that it was not intended to await an accident and then look back to see to what employees the jurisdiction of the Commission attached. 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.R. v. Ind. Comm., 60 Utah 95,206 P. 1103; Utah Rapid Transit Co. v. Ind. Comm.,59 Utah 232, 204 P. 87; Conway v. So. Pac. R. Co., 67 Utah 464,248 P. 115, 49 A.L.R. 1316; Southern Pac. Co. v. Ind. 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, as 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 in its nature intrastate. In other words, while the courts endeavored to go as far as possible to find an act 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. I fear such classification would 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 as if it had been purely intrastate work. 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 in interstate 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 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 dominated as interstate commerce for purposes of the Federal Employers' Liability Act, as an intrastate act because it had an intrastate quality, 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 that, even though an interstate act, since it was not specifically covered by the Employers' Liability 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. While I think much can be said for the position of Mr. Justice Brandeis, we are bound by the majority opinion. That being so, the tests by which it is to be determined whether an employee was engaged in interstate commerce for the purposes of determining whether the Federal Employers' Liability Act applies must also be used to determine what act is an intrastate, as distinguished from an interstate, act in order to determine under Section 42-1-89, Rev. St. Utah 1933, whether the Industrial Commission has jurisdiction. And in applying such tests to determine whether Harrington was at the time of the accident engaged in intrastate or interstate commerce, I must agree with the analysis of Mr. Chief Justice Folland. His opinion sets out why in the instant case the deceased was engaged in interstate commerce at the time of his death. I concur in the conclusion that deceased was so engaged in interstate commerce. And being so engaged for the reasons stated above the compensation act of our state is excluded from operation.

For the above reasons I dissent from the prevailing opinion.