Hogan v. Baltimore & OR Co.

• Decision Date: 04 November 1926
• Docket Number: No. 4621.,4621.
• Citation: 15 F.2d 739
• Parties: HOGAN v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

15 F.2d 739 (1926)

HOGAN v. BALTIMORE & O. R. CO.

No. 4621.

Circuit Court of Appeals, Sixth Circuit.

November 4, 1926.

Jos. W. Sharts, of Dayton, Ohio, for plaintiff in error.

A. McL. Marshall, of Dayton, Ohio (Byron B. Harlan, of Dayton, Ohio, and Morrison R. Waite and Wm. A. Eggers, both of Cincinnati, Ohio, on the brief), for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge.

This cause was decided below on a demurrer to the petition as amended. The relevant facts alleged were that defendant was engaged in both intrastate and interstate commerce; that plaintiff was its employee as a car repairer at Toledo, Ohio, and as such was required to straighten the handholds on railway cars; that the usual and proper implement for such work was a buggy bar, having a curved end for digging into and gripping the woodwork; that plaintiff had repeatedly requested his superiors to furnish him a buggy bar with which to do the work, but they had refused to do so, and required him to use a long wrench, which was an unsafe appliance; and that, while standing on the stirrup of a car and attempting to straighten a handhold on October 25, 1924, the wrench which he was using slipped, and caused him to fall across the rails of the track, resulting in the injuries for which he sought damages.

It was further alleged that defendant regularly employed in its service more than five workmen and operators, but that it was not, at the time of the injury nor thereafter, paying into or participating in the state insurance fund of Ohio, under the provision of the Workmen's Compensation Act of that state. This allegation was made under section 1465 — 60, G. C. of Ohio, which generally designates the employers subject to the Workmen's Compensation Act of the state. It was stricken from the petition, and thereafter the demurrer was sustained.

The contention of the plaintiff is that the state act applies, or rather that defendant, not having elected to accept its provisions with respect to the plaintiff and the work he was doing at the time of his injury, is by the terms of the act denied the right to avail itself of the defenses of assumption of risk and contributory negligence.

The applicable section of the act (G. C. § 1465 — 98) reads: "The provisions of this act G. C. §§ 1465 — 41a to 1465 — 45, 1465 — 46, 1465 — 53 to 1465 — 106 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, and then only when such employer and any of his workmen working only in this state, with the approval of the state liability board of awards, and so far as not forbidden by any act of Congress, voluntarily accept the provisions of this act by filing written acceptances, which, when filed with and approved by the board, shall subject the acceptors irrevocably to the provisions of this act," etc. Another section (G. C. § 1465 — 73) provides that the employers mentioned in a previous section (G. C. § 1465 — 60) who fail to comply with the provisions if the act, shall not be entitled to its benefits, and shall not avail themselves of the common-law defenses of the fellow-servant rule, assumption of risk, and contributory negligence.

Whether the employer referred to in section 1465 — 98 is to be regarded as embraced in section 1465 — 60 for the purposes of section 1465 — 73 we have no occasion to decide, since, whatever may be the meaning of the act in its attempt to deal with the separably intrastate work of employers and employees...