69 S.W.2d 656 | Mo. | 1934
Lead Opinion
Defendant railroad company appeals from a judgment of the Circuit Court of Jackson County at Kansas City, reversing an award of no compensation made by the Missouri Workmen's Compensation Commission and remanding the cause to the commission for further proceedings.
[1] Plaintiff's claim was for compensation for the death of her husband, caused by accidental injuries suffered in the course of and arising out of his employment by the defendant. The commission *854
based its award of no compensation upon the ground that, at the time of the injury, the employee, Oliver T. Benson, was engaged in interstate commerce, and therefore that the cause was exclusively covered by Federal law, to which by Section 3310a, Revised Statutes 1929, the Missouri Compensation Act does not apply. The Supreme Court of the United States has ruled often that, in the case of an employee who is injured or killed while he is engaged in interstate commerce, the rights and liabilities of the employer and employee are inclusively and exclusively regulated by the Federal Liability Act. [Sec. 51, Chap. 2, Title 45, Railroads, U.S. Code Annotated.] The Federal decisions hold that in the case of accidents so occurring no room exists for the operation of State Compensation Acts even in respect of injuries caused without fault of the employer, as to which the Federal Act provides no remedy. [New York Central Railroad Co. v. Winfield, 37 Sup. Ct. 546,
The deceased, Oliver T. Benson, was employed by defendant railroad company as assistant general yardmaster in zone 2, embracing what is known as the East Bottom railroad yards at Kansas City, Missouri. His hours of duty were from 6 P.M., to 6 A.M. At or about 10:30 P.M., May 10, 1932, Benson entered his office in the yards, and the night being chilly and damp, he set about to build a fire in a heating stove. He poured some kerosene upon the fuel in the stove. There was an instant explosion. Benson's clothes took fire and he received bodily burns from which he died two days later.
Benson, during his tour of duty, directed the make-up of outbound and break-up of inbound freight trains. His immediate superior was Earl H. Campbell, general yardmaster of the defendant railroad company. Both men went on duty at 6 P.M., May 10, 1932, and almost immediately they had a conference in Mr. Campbell's office at which they laid out the night's work in zone 2. They did this by means of reports before them. These reports were made up by yard clerks and consisted of the "turn-over" (cars then in the zone), and the "line up" of inbound trains (of which they had advance telegraphic information, giving the numbers, contents and destination of the constituent cars). They also checked special orders. The conference being ended, Benson went to his office and entered upon *855 the discharge of his night's duties. Campbell dealt alone with his assistant general yardmasters, of whom there were two, one in charge of each of two zones. But Benson and the other assistant general yardmaster had assistant yardmasters under them. Benson was of the highest rank of servants of defendant to give orders to switching crews and assistant yardmasters touching the make-up, break-up and other disposition of freight trains.
The "turn over," that is, the freight cars in the zone when Benson took charge that night, consisted of 972 cars. Of these seven went out in trains that night to Wagner, Oklahoma, fifteen to Wichita, Kansas, and forty-six to East line connections at St. Louis, Missouri. While Benson was on duty, from 6 P.M., to the time of his injury at 10:30 P.M., there came into the zone three freight trains and there departed seven. The times of arrival of the inbound trains and the places whence they came were as follows: 6:30 P.M., from Jefferson City, Missouri; 6:55 P.M., from Omaha, Nebraska, and Atchison, Kansas; 7 P.M., from Osawatomie, Kansas. The time of departure from zone 2 of the seven outbound trains was as follows: 7:25 P.M., for St. Louis, Missouri; 7:40 P.M., for Osawatomie, Kansas; 7:50 P.M., for Osawatomie, Kansas; 8:45 P.M., for Nevada, Missouri; 8:50 P.M., for St. Louis, Missouri; 10:15 P.M., for Osawatomie, Kansas; 10:30 P.M., for Myrick, Missouri. The trains departing at 10:15 and 10:30 P.M., were completed at 9:15 P.M., and 10 P.M., respectively. The train which departed for Myrick, Missouri, at 10:30 P.M., contained cars loaded with freight from Conroe, Texas; Eldorado, Kansas; Deweese, Mississippi. After Benson had been injured and had been removed from the yards and his work had been taken over by Mr. Campbell for the remainder of the night of May 10-11, 1932, there came into zone 2 five freight trains and there departed three. The times of arrival of the inbound trains and their points of origin were: 11:25 P.M., Osawatomie, Kansas; 11:50 P.M., Omaha, Nebraska; 1:40 A.M., Nevada, Missouri; 1:50 A.M., St. Louis, Missouri; 4:30 A.M., Myrick, Missouri. The times of departure of the outbound trains and their destinations were: 12:01 A.M., Nevada, Missouri, 12:55 A.M., St. Louis, Missouri; 4:20 A.M., Pueblo, Colorado.
The inbound freight trains, upon arrival in the zone, were broken up by the switching crews, and, by them, the constituent cars were placed in outbound trains or were transferred to connecting carriers or were set aside for delivery the next day upon Kansas City industrial tracks. The switching crews also made up the outbound trains, and they did all their work with inbound and outbound trains and their constituent cars according to orders which Benson gave them in advance, and which he based on the data which he and General Yardmaster Campbell had before them at their conference. Benson had in his office two telephones. One of these was for communication, *856 by means of loud speakers, with switching crews and assistant yardmasters working in the zone. Some of the cars in all trains which passed into or out of the zone that night were moving in interstate commerce, others in intrastate commerce. Some of the cars were loaded, others were empty.
General Yardmaster Campbell, who took up Benson's work after the accident, testified that, about fifteen minutes before the fire Benson ordered train No. 263, Joplin Division, to pull through the train yard into Junction 18. This train consisted of loaded cars from Minneapolis, Minnesota, to Colony, Kansas. It left the zone at 12:01 A.M., May 11, about an hour and a half after the accident. As far as Mr. Campbell knew, this was the last order that Benson gave. But Percy C. Parks a switchman whose crew stopped near Benson's office about 10:30 P.M., their quitting time, testified that Benson gave them as a last order, a direction to move a car, destined for St. Louis, Missouri, from track 14 to the train yard. The record does not show whence this car had come nor when nor what was its ultimate destination. Prior to receiving this order, in Benson's office, Parks had aided Benson in gathering kindling for the fire which Benson was about to build in the stove. Parks had moved 150 feet from Benson's office when he heard the explosion and saw Benson aflame. The building of the fire by Benson in the office stove did not have anything to do with the movement of cars and the movement of trains in the yard over which Benson had supervision could have been accomplished without the building of any fire by him, according to the testimony of Mr. Mahoney, superintendent of defendant's terminals.
[2] I. The United States Supreme Court, in New York Central and Hudson River Railroad Co. v. Carr (1915),
In the case of Pedersen v. Delaware, Lackawanna Western Railroad Company (1913),
"I am unable to assent to the proposition that a man carrying bolts to be used by him in repairing a railroad bridge was employed in interstate commerce. Transportation has been defined as commerce, and those engaged in transportation are employed in commerce. But in building the bridge originally the carrier was not `engaging in commerce between the States,' and the plaintiff, in subsequently repairing it, was not employed in such commerce. Such work was not a part of commerce, but an incident which preceded it. The act provides that `every common carrier by railroad, while engaging in commerce between any of the States or Territorities . . . shall be liable in damages to any person suffering injury while employed by such carrier in such commerce.'"
In the case of Shanks v. Delaware, Lackawanna Western Railroad Co. (1916),
"The question for decision is, was Shanks at the time of the injury employed in interstate commerce within the meaning of the Employers' Liability Act? What his employment was on other occasions is immaterial, for, as before indicated, the act refers to the service being rendered when the injury was suffered. Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion (see Swift Co. v. United States,
In the case of Industrial Accident Commission of California v. Davis, supra, the Supreme Court reviewed a decision of the District Court of Appeals which reversed an award of compensation that the Industrial Commission had made to an injured railroad employee. The California District Court of Appeals, in reaching its decision, "concluded, after a review of cases, that Burton's work was `so intimately connected with interstate commerce as practically to be a part of it, and therefore,' the Commission `had no jurisdiction.'" [259 U.S. l.c. 184.] The cases, which the California Court reviewed, cited in the margin of 259 U.S. l.c. 184, include Pedersen v. Railroad Co., supra. The United States Supreme Court, in reversing and remanding the judgment of the California District Court of Appeals, used the test of the Shanks case in determining the question of application of the Federal Employers' Liability Act or of the California Workmen's Compensation Act. This test as we *859 have seen is: "Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" In the California case the employee Burton received injuries while working in the general repair shops of a railway company upon an engine that had been employed in interstate commerce and which was destined to be so employed again. The Supreme Court, in the California case, declined "to declare a standard invariable by circumstances or free from confusion by them in application," even, as the court said, if that were ever possible. But the Supreme Court, in that case, made some observations concerning the circumstances of application of the Federal Employers' Liability Act which appear to be in point here. The court said (259 U.S. l.c. 187):
"The federal act gives redress only for injuries received in interstate commerce. But how determine the commerce? Commerce is movement, and the work and general repair shops of a railroad, and those employed in them, are accessories to that movement, indeed, are necessary to it, but so are all attached to the railroad company, official, clerical or mechanical. Against such a broad generalization of relation we, however, may instantly pronounce, and successively against lesser ones, until we come to the relation of the employment to the actual operation of the instrumentalities for a distinction between commerce and no commerce. In other words, we are brought to a consideration of degrees, and the test declared that the employee at the time of the injury must be engaged in interstate transportation or in work so closely related to it as to be practically a part of it, in order to displace state jurisdiction and make applicable the federal act."
The United States Supreme Court confirmed the test of the Shanks case and repudiated the rule of the Pedersen case in Chicago and Northwestern Ry. Co. v. Bolle (1931),
"It will be observed that the word used in defining the test is `transportation,' not the word `commerce.' The two words were not regarded as interchangeable, but as conveying different meanings. Commerce covers the whole field of which transportation is only a part; and the word of narrower signification was chosen understandingly and deliberately as the appropriate term. The business of a railroad is not to carry on commerce generally. . ..
"Since the decision in the Shanks case, the test there laid down has been steadily adhered to, and never intentionally departed from or otherwise stated. It is necessary to refer to only a few of the *860
decisions. In Chicago, B. Q. Railroad Co. v. Harrington, supra, an employee engaged in placing coal in coal chutes, thence to be supplied to locomotives engaged in interstate traffic, was held not to have met the test. In Illinois Central Railroad Co. v. Cousins,
"The rule announced by the Shanks case has been categorically restated and applied also in the following cases among others (citing cases which we have cited heretofore). The applicable test thus firmly established is not to be shaken by the one or two decisions of this court where, inadvertently, the word `commerce' has been employed instead of the word `transportation.'"
The divergence between the award of the commission and the judgment of the circuit court in the instant case is identical with the difference between the tests prescribed respectively by the Pedersen case and the Shanks case. The commission based its award of no compensation for want of jurisdiction upon the ground that the deceased, at the time of his injury, was engaged in interstate commerce, which is the test of the Pedersen case. The circuit court by its judgment reversing the award, found that the deceased, at the time of his injury "was not engaged in interstate transportation of commerce," which is the test of the Shanks case. We are of opinion that the judgment of the circuit court in the instant case should be affirmed under the rule laid down in the Shanks case. At the time of his injury Benson was not engaged in interstate transportation of commerce. He was not giving any orders. For the time being, at least, his work of giving orders to make-up and break-up trains, was done. It so appears from the records which defendant offered in evidence. By these records the latest inbound train to arrive in the zone, before Mr. Benson was injured, came in at 6:55 P.M., which was three hours and thirty-five minutes before the accident. And the first inbound train after the accident, arrived at 11:25, P.M., which was fifty-five minutes after the accident. By the same exhibits, it appears that an outbound train departed at 10:30 P.M., which approximately was the time of the accident, but which was also a time at which the make-up work of the switching crews was done. For the record shows as to this train: "started 9 P.M., completed *861 10 P.M., departed 10:30 P.M." Defendants' record of the first outbound train to depart after Benson was injured is: "started 11 P.M., completed 12:30 A.M., departed 12:55 A.M." The testimony of the defendant's general superintendent of terminals that Mr. Benson had a hand in the make-up of the trains which departed after his injury is contradicted by the records which that witness produced. The train which departed at 12:55 A.M., was the first of those. The formation of this train began at 11 P.M., and ended at 12:30 A.M. As was said in the Shanks case, what his employment was on other occasions is immaterial for the act refers to the service being rendered when the injury was suffered.
We cite one more decision of the United States Supreme Court, which bears upon Benson's official inactivities at the time that he was burned. In Erie Railroad Co. v. Welsh (1916),
It would seem that the view thus taken of the case of yard conductor Welsh even more clearly applies here to the case of assistant general yardmaster Benson, a servant of the railroad company whose work was more remote from the actual movement of interstate trains than were the duties of a yard conductor.
For further authorities which may be in point here, reference is made to our opinion, given at this delivery, in the case of Aldridge v. Wabash Railway Co.,
No error appearing the judgment is affirmed and the cause is remanded for further proceedings in accordance with the judgment of the circuit court. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by FITZSIMMONS, C., is adopted as the opinion of the court. All the judges concur.