Halley v. Ohio Valley Elec. Ry. Co.
| Decision Date | 31 October 1922 |
| Docket Number | 4620. |
| Citation | 114 S.E. 572,92 W.Va. 172 |
| Parties | HALLEY v. OHIO VALLEY ELECTRIC RY. CO. |
| Court | West Virginia Supreme Court |
Submitted October 24, 1922.
Syllabus by the Court.
Where in an action against an interstate electric railway company for wrongful death under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), from injuries inflicted while deceased was engaged in installing a new transformer, to take the place of an old one in a substation, though it appears that the title to the substation is in a power company, a separate corporation that furnishes electric power to defendant railway company for the operation of its cars, and defendant denies that deceased was employed by it, but claims he was employed by the power company, evidence showing that defendant issued to deceased, when he entered upon his work an employee's passbook, containing tickets or coupons entitling him to free passage over its lines, which defendant could not lawfully issue to him unless he were in its service; that the pass designated him as defendant's employee, and provided that any violation of its conditions might cause his suspension or discharge, and that, should he cease to be an employee of defendant, his wages might be held by the company for any tickets not returned; that his wages were paid by the railway company, and that the general manager of the power company was also general manager of the railway company--together with other facts and circumstances in the case, warranted the jury in finding that the work of installing the transformer was being done by defendant, and that deceased, while engaged in that work, was in defendant's service.
One employed in the repair or maintenance of an instrumentality which is used by an electric railway company engaged in interstate commerce, and which is essential to the successful operation of the railway, is employed in such commerce, under federal Employers' Liability Act (U. S Comp. St. §§ 8657-8665).
A workman was injured while installing a new rotary converter and transformer in an electric substation, and connecting it with wires to the main or conductor bus that carries the electric current to an electric railway's trolley wires. The new transformer was to take the place of an old one, which regulated the current used in the operation of the railway company's cars in interstate commerce, and was an instrumentality essential to the successful operation of the railway. Held, that the work was one of repair and maintenance, and that the workman so engaged was employed in interstate commerce, within the meaning of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).
Where it is shown that decedent was a vigorous young man, earning 50 cents an hour as electrical helper, not quite 20 years of age, of good habits, industrious, kind, obedient, and affectionate toward his parents, contributed occasionally small sums to their support, and had expressed a desire to assist them in purchasing a home, a verdict of $6,000 for his wrongful death will not be set aside because excessive.
Error to Circuit Court, Cabell County.
Proceeding by Ura O. Halley, administrator of the estate of Calvin O. Halley, deceased, for compensation under the federal Employers' Liability Act for the death of deceased, opposed by the Ohio Valley Electric Railway Company, employer. From an award of compensation, the employer brings error. Judgment affirmed.
Vinson, Thompson, Meek & Renshaw, of Huntington, for plaintiff in error.
L. D. Isbell, of Huntington, and R. M. Switzer, of Gallipolis, for defendant in error.
Plaintiff as administrator of the estate of his son, Calvin O. Halley, recovered a judgment of $6,000 under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), for the death of his son, occasioned by injuries received while in the alleged employ of the defendant. Calvin O. Halley, at the time of his death, was between 19 and 20 years of age, and was employed as electrician's helper in the installation of certain electrical transformers in a substation in Huntington. While climbing or standing upon a ladder, assisting in the work upon the "dead" transformer being installed, he, in some way not made entirely clear by the evidence, came in contact with an exposed bushing on top of a "live" transformer, which stood only a few inches from the ladder, and was killed. The negligence charged was the placing by defendant or its agents of the ladder in such close proximity to the exposed bushing, the dangerous character of which was unknown to the deceased, and of which, due to his inexperience and youth, he had no means of knowing. Defendant brings error.
Three grounds of error are assigned: (1) That the evidence shows that Halley was not employed by or in the service of the defendant; (2) that at the time of his death he was not employed in interstate commerce, so as to bring him within the provisions of the federal Employers' Liability Act; and (3) that the verdict is excessive.
1. We think the jury was warranted in finding that deceased was in the employment of defendant. At the time of his death he was working at Johnston's Lane substation. This station had been in operation for a number of years. It was originally owned by defendant. Defendant's general manager was permitted to state over plaintiff's objection that at the time of the accident it was owned by the Consolidated Light, Heat & Power Company, without producing written evidence of the transfer. While this statement was improper, yet it is now immaterial, in view of our findings. The record shows that over the door to the substation were the letters: "O. V. E. Ry. Co." On decedent's person was found an employee's pass, issued by defendant, which is in the following words:
No. 3545. 12""21""19.
A short time after his death the railway company delivered to his father two checks, issued in its name, made out in the name of the decedent, covering his wages from December 16 to December 31, 1919, and from January 1 to January 15, 1920.
There are three corporations involved, though but one is a party to this action, namely, the defendant Ohio Valley Electric Railway Company, which operates the electric railways from Huntington, W.Va., to Ashland, Ky.; the Consolidated Light, Heat & Power Company which has its main power plant at Kenova, W.Va., and a substation at Johnston's Lane, in Huntington, and furnishes power to the defendant railway company; and the American Railways Company, with its main office in Philadelphia, Pa., which owns the majority of the stock of the other two companies. The defendant is admittedly engaged in both interstate and intrastate commerce. The record shows that Hambach, a representative of the American Railways Company, set Halley to work on this job, but he did not fix his wages, nor is it contended by defendant that Halley was employed by American Railways Company. Hambach had been sent by this company to look after this work; he testifies that the machinery was being installed for the power company, but does not say it was being installed by the power company. W. R. Powers, who was general manager of both the power company and the defendant, testifies that the employees doing this work were paid their wages by defendant, but he excuses defendant by stating that the power company did not at that time have money to pay their wages; that defendant was daily taking in money, and for this reason it paid the wages of the power company's employees and charged the same to its account; but when asked whether or not defendant had anything whatever to do with the work being done and upon which Halley was employed, answered:
"They were putting in this work for the Consolidated Light, Heat & Power Company."
On further questioning, he said that all that defendant did in that connection was to pay for it; however, when we consider the employees' pass issued to Halley by defendant, we find the defendant designated him as its employee. That pass provides that any violation of its conditions may cause the suspension or discharge of the employee, as the management may elect; that the employee's wages may be held by defendant for any tickets not redeemed when he should cease to be defendant's employee. It must be remembered, also that it was a clear violation of law for defendant railway company to issue an employees' pass to decedent, if he was not employed by it, but was employed by the power company. It cannot reasonably be inferred that defendant was deliberately violating the law, but, on the contrary, that the pass was lawfully issued to deceased as its employee, and not as the employee of the power company. These matters mentioned, together with other evidence, were amply sufficient to warrant the jury in finding that deceased was in the service of ...
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