Chicago, M. & St. P. Ry. Co. v. Turpin
| Decision Date | 16 October 1924 |
| Docket Number | No. 11963.,11963. |
| Citation | 82 Ind.App. 78,145 N.E. 316 |
| Court | Indiana Appellate Court |
| Parties | CHICAGO, M. & ST. P. RY. CO. v. TURPIN. |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Proceeding by Etta B. Turpin under the Workmen's Compensation Act to obtain compensation for the death of her husband, Robert L. Turpin, opposed by the Chicago, Milwaukee & St. Paul Railway Company, the employer. There was an award of compensation, and the employer appeals. Award reversed.
Clark & Brooks, of Bedford, and M. L. Bluhm, of Chicago, Ill., for appellant.
R. L. Mellen and Boruff & Boruff, all of Bedford, for appellee.
On and prior to July 23, 1923, Robert L. Turpin was in the employ of appellant. He received an injury on said day by an accident arising out of and in the course of his employment, and died as a result of such injury. Appellee being his wife and wholly dependent upon him for support filed her application for compensation. From an award granting compensation, appellant appeals, and by proper assignment challenges the award on the ground that it is not sustained by sufficient evidence.
[1] The only fact necessary to sustain the award and not agreed on related to the question as to whether or not the employé at the time of his injury was engaged in interstate commerce. The board found he was not engaged in interstate commerce. The only points raised and discussed by the parties relate to the correctness of this finding. If there is any evidence to sustain this finding, the award must be affirmed.
On the morning of July 23, 1923, appellant's assistant car foreman gave Mr. Turpin an order received from the car foreman to repair a certain car which had been set out at Cale, because of broken brass. This car was loaded with coal and was being used in intrastate commerce. After receiving this order, Mr. Turpin, while on his way to appellant's depot to take a train to Cale, was struck by a train on the Monon Railroad and killed. On the night of July 20th, a telegram was received by appellant's agent at Bedford, notifying him that a certain car at Williams was in need of repair. This telegram was given to Mr. Cooper, a repairman, on the morning of July 21st, with directions to go to Williams that day and repair this car, which was then in use in interstate commerce and which had been interrupted in an interstate haul to be repaired and then to go on. It being Saturday, the repairman quit work at noon. Mr. Cooper was therefore ordered to postpone the work until Monday, July 23d, and did so. When Mr. Cooper returned to work Monday morning, knowing that Mr. Turpin was to do the repair work that day, he told Mr. Turpin about having received the orders to repair this car at Williams and also told him that on account of changing his clothing Sunday he had lost the telegram or order and did not have it with him.
Section 19 of the Indiana Workmen's Compensation Act (Acts 1915, p. 392; section 8020c1, Burns' Supp. 1921) provides as follows:
“This act except section 67 shall not apply to employees engaged in interstate or foreign commerce, nor to their employers, in case the laws of the United States provide for compensation or for liability for injury or death by accident of such employees.”
Section 1 of the federal Employers' Liability Act (34 Stat. at Large, 232, chap. 3073) provides that every common carrier by railroad while engaged in interstate commerce shall be liable in damages to any employee who is injured while engaged in interstate commerce.
The Supreme Court of the United States, in Philadelphia, etc., R. Co. v. Polk, 256 U. S. 332, 41 Sup. Ct. 518, 65 L. Ed. 958, said:
“*** If there be an assertion of the claim or remedy growing out of an occurrence in which there are constitutents of interstate commerce, the burden of explanation and avoidance is on him who asserts the claim or remedy, not on the railway company to which it is directed, ***.”
[2] Appellee in discussing this question says:
“The mere fact that a person is employed by a railroad company in interstate commerce does not, of itself, take such employee out from under the provisions of the Indiana Workmen's Compensation Act.”
This statement loses its force when it is remembered that the statute excepts from its provisions employees of railroads engaged in interstate commerce and such railroads from its provisions, and that the burden is on the employee in order to be entitled to an award of compensation to bring himself within the provisions of the act. In other words, the mere fact that an employee of a railroad is injured by reason of an accident growing out of and in the course of his employment is not sufficient to authorize an award of compensation. The injured employee must go further and prove that at the time of his injury he was not engaged in interstate commerce. Philadelphia, etc., R. Co. v. Polk, supra; Scanlon v. Payne, Director General, 271 Pa. 391, 114 Atl. 493;Carberry v. Delaware, etc., R. Co., 93 N. J. Law, 414, 108 Atl. 364. See, also, Pioneer Coal Co. v. Hardesty, 77 Ind. App. 205, 133 N. E. 398.
[3] Appella...
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