195 P. 81 | Cal. Ct. App. | 1920
This proceeding was brought to review the action of the Industrial Accident Commission of California in awarding compensation to one O. J. Burton for *162 injuries sustained by him in the line of his employment under Walker D. Hines, director-general of railroads, operating the Los Angeles and Salt Lake railroad.
On February 1, 1919, when he received the injury, Burton was engaged in repairing engine No. 3673 in the general shops of the Salt Lake railroad at Los Angeles. While tapping the boiler of the engine a piece of steel, blown from the exhaust of a compressed-air motor operated by men working near him, lodged in his left eye, causing the injury for which he was awarded compensation. This locomotive had been used several months for the exclusive purpose of hauling heavy freight trains in interstate commerce between points in the states of Nevada and California, on the main line of the railroad. On the 19th of December, 1918, it was placed in the shops at Los Angeles for general overhauling and the installation of a superheating apparatus to increase the steam pressure, whereupon it was the intention to return it to its regular service. It was estimated that this work would be finished about January 30, 1919, but owing to delay in delivery of necessary materials it was not actually completed until about February 21, 1919. After the repairs had been made the engine was given a trial for several days in the yards of the company at Los Angeles, in accordance with the usual custom, without cars attached. On February 25, 1919, it hauled a freight train from Los Angeles to San Pedro, and on the following day returned to Los Angeles with a similar train, a portion of the cargo in both instances being consigned to points outside of California. It was testified that the trip to San Pedro was a part of the process of "breaking in" after a locomotive had undergone extensive repairs. After this run to San Pedro the engine was returned to the shop, remaining there until March 4, 1919, when it was sent out attached to a through freight train, and resumed its former run between Yermo, California, and Caliente, Nevada, on the main line of the railroad, where it has ever since been used.
This rather elaborate detail seems essential to a thorough understanding of the facts, which are uncontroverted. It is conceded that if the Industrial Accident Commission of California had jurisdiction of the case, the award is just and proper in all respects. *163
The sole question presented for our consideration is: Was the engine, at the time of the accident, engaged in interstate commerce, within the meaning of the Federal Employer's Liability Act (35 Stats. 65 [8 Fed. Stats. Ann., 2d ed., p. 1208; U.S. Comp. Stats., sec. 8657])?
The answer to this simple proposition is rendered difficult by the apparent conflict of decisions of the various courts, federal and state, which have been called upon to apply the law to the facts in issue in particular cases. It is complicated by reason of the fact that no fixed rule has been established by the supreme court of the United States for the application of the statute. It has held that each case must be decided in the light of the particular facts with a view to determining whether, at the time of the injury, the employer is engaged in interstate business, or in an act which is so directly and immediately connected with such business as substantially to form a part or necessary incident thereof. (New York C. H. R.Co. v. Carr,
In Louisville Nashville R. Co. v. Parker,
New York C. R. Co. v. Carr, supra, was a case where two cars carrying interstate freight were uncoupled from an interstate train and backed into a siding, where the employee was injured. We quote from the decision: "The matter is not to be decided by considering the physical position of the employee at the moment of injury. If he is hurt in the course of his employment while going to a car *164 to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefit of the federal act, although the accident occurred prior to the actual coupling of the engine to the interstate cars."
In the case of Erie R. Co. v. Winfield,
New York C. R. Co. v. Porter,
In Philadelphia, B. W. R. Co. v. Smith,
Pederson v. Delaware, L. W. R. Co.,
Shanks v. Delaware, L. W. R. Co.,
In the case of Chicago, B. Q. R. Co. v. Harrington,
The above citations will suffice to indicate the subtle distinctions which have been drawn by the supreme court of the United States in interpreting and applying the Federal Employer's Liability Act.
Coming now to the decisions of our own supreme court construing these authorities, we encounter a direct conflict which adds to the difficulty of reaching a satisfactory solution of the problem.
In the case of Southern Pacific Co. v. Pillsbury,
On January 8, 1917, the supreme court of the United States rendered an opinion in the case of Minneapolis St. Louis R.Co. v. Winters,
On the authority of the Winters case, our supreme court, inHines v. Industrial Acc. Com.,
Some of the other adjudications of our supreme court are illuminating upon this intricate problem. It has been held that a watchman at a railroad crossing used for both interstate and intrastate traffic is engaged in interstate business while employed in keeping the track clear of obstructions in order to facilitate the passage of interstate trains. (Southern Pac. Co.
v. Industrial Acc. Com.,
In the case of Southern Pac. Co. v. Industrial Acc. Com.,
The cases which most closely parallel the one we have under consideration are found in the decisions of the circuit courts of appeals; and though they are not expressions of the court of last resort, nevertheless they may guide the action of the state courts in determining the applicability of the federal statute.
Law v. Illinois Cent. R. Co., 208 Fed. 869, [L. R. A. 1915C, 17, 126 C. C. A. 27], was decided by the circuit court of appeals of the sixth circuit. A boilermaker's helper was injured in the shops of the railroad company at Memphis, Tennessee, while assisting the boilermaker in repairing a freight engine regularly used in interstate commerce. The engine was in the shop for what is called "roundhouse overhauling," and had been dismantled at least twenty-one days before the accident. Up to the time it was taken to the shop it had been regularly used in interstate commerce, was destined to return thereto on completion of the repairs, and did so return the day following the accident. In the opinion holding the federal act applicable to the facts, the court propounds the following pertinent interrogatories: "Under the existing facts, can the length of time required for the repairs change the legal situation? If so, where is the line to be drawn? How many days temporary withdrawal would suffice to take it out of the purview of the act? And is it material whether the repairs take place in the roundhouse or in general shops? Is not the test whether the withdrawal is merely *169 temporary in character?" Further quoting from the opinion: "As held in the Pederson case, the work of keeping the instrumentalities used in interstate commerce (which would include engines) in proper state of repair while thus used is so clearly related to such commerce as to be in practice and in legal contemplation a part of it."
In Northern Pac. R. Co. v. Maerkl, 198 Fed. 1, [117 C. C. A. 237], the circuit court of appeals of the ninth circuit held that an employee engaged at the railway shops in making repairs upon a refrigerator car theretofore used indiscriminately in intrastate and interstate commerce, and intended again to be so used when repaired, was one of the instruments of interstate commerce.
Some general statements in the opinion in the Brizzolara case, supra, might seem to be determinative of the issues here involved; but a perusal of the opinion discloses that such statements, in so far as they attempt to state the legal principles applicable to all engines, are not warranted by the decision in the Winters case, supra, upon which they purport to be based. The Winters case turned upon the proposition that the future use of the engine was undetermined, and that its character as an instrumentality of interstate commerce could not be made to depend upon remote possibilities or upon accidental later events. The switch engine involved in the Brizzolara case, when in service, was used in both interstate and intrastate traffic — the proportion of each not being ascertainable from the evidence. It does not appear that it was intended for such service in the future, or that it was utilized for any purpose whatever after being repaired. The facts in the instant case are distinguishable from those in either the Winters case or the Brizzolara case. Here the engine was permanently devoted to interstate commerce, was destined to return to that service on completion of the necessary repairs, and was so returned when placed in condition for such use. It would seem that the length of time it was out of commission is immaterial, so long as it was the intention to maintain its character as an instrumentality of interstate commerce. As stated in the Parker case, supra, "the purpose controls, and the business is interstate." Its future use was not dependent upon "remote probabilities or accidental later events," but, so far as purpose and intention *170 are concerned, its continued use in interstate traffic was as certain as anything in human affairs can be predetermined.
[1] In the light of the decisions, we conclude that, at the time of the accident, Burton was engaged in work so intimately connected with interstate commerce as practically to be a part of it, and, therefore, that the Industrial Accident Commission of California had no jurisdiction.
Award annulled.
Finlayson, P. J., and Thomas, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on December 24, 1920, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 24, 1921.
Shaw, J., Lennon, J., Olney, J., and Sloane, J., concurred.
Angellotti, C. J., Lawlor, J., and Wilbur, J., dissented.