Hulse v. Pacific & Idaho Northern Railway Co.

• Decision Date: 01 May 1929
• Docket Number: 5105
• Parties: MARY ERMINA HULSE and MARY ERMINA HULSE, Guardian of ESTHER MAY HULSE and EDNA PEARL HULSE, Minors, Respondents, v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY, a Corporation, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

277 P. 426

47 Idaho 561

MARY ERMINA HULSE and MARY ERMINA HULSE, Guardian of ESTHER MAY HULSE and EDNA PEARL HULSE, Minors, Respondents, v. PACIFIC AND IDAHO NORTHERN RAILWAY COMPANY, a Corporation, and STATE INSURANCE FUND, Surety, Appellants

No. 5105

Supreme Court of Idaho

May 1, 1929

WORKMEN'S COMPENSATION ACT-WHEN EMPLOYEE IS ENGAGED IN INTERSTATE COMMERCE.

1. Test for determining whether any particular employment is a part of interstate commerce is whether the employee at the time of injury was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it.

2. Death of section-hand while using own motor-car in towing a similar car, which he had been using pending repairs to his own, to permit its use by other sectionmen in returning to their farm or engaging otherwise in their own business, held not to have occurred in interstate transportation, and hence recovery was properly allowed under the Workmen's Compensation Act (C. S., secs. 6213-6339, as amended) notwithstanding that for several weeks prior to accident towed car had been used in furtherance of interstate commerce in maintenance of way work, but which work had been completed prior to accident.

APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. Ed. L. Bryan, Judge.

Industrial Accident Board awarded compensation for accidental death. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Scatterday & Stone, for Appellants.

As to whether the employee was engaged in interstate commerce and therefore governed by the federal Employers' Liability Act, the test 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 part of it? (Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188 60 L.Ed. 436, L. R. A. 1916C, 797; Glidewell v. Quincy O. & K. C. R. Co., 208 Mo.App. 372, 236 S.W. 677; Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, Ann. Cas. 1914C, 153, 33 S.Ct. 648, 57 L.Ed. 1125; McLean v. Boston & M. R. R., 80 N.H. 252, 116 A. 435; Oregon Short Line R. Co. v. Gubler, 9 F.2d 494; Kinzell v. Chicago, M. & St. P. Ry. Co., 250 U.S. 130, 39 S.Ct. 412, 63 L.Ed. 893.)

If there is an element of interstate commerce in a traffic or employment, it determines the remedy of the employee. ( Philadelphia & Reading Ry. Co. v. Polk, 256 U.S. 332, 41 S.Ct. 518, 65 L.Ed. 958; Mondou v. New York, N.H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A., N. S., 44; New York Central Ry. Co. v. Winfield, 244 U.S. 147, Ann. Cas. 1917D, 1139, 37 S.Ct. 546, 61 L.Ed. 1045, L. R. A. 1918C, 439; Hilliard v. Clifford, 134 Wash. 590, 236 P. 108.)

James Harris, for Respondents.

The federal Employers' Liability Act does not prevent the operation of a state Workmen's Compensation Law in respect of injuries suffered by one not at the time employed in interstate commerce within the decisions construing and applying the federal statute, even though he was at the time employed by a railway company which was, in a general sense, engaged in interstate commerce. (Raymond v. Chicago etc. R. Co., 243 U.S. 43, 37 S.Ct. 268, 61 L.Ed. 583; New York Cent. R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667.)

Where an employee of an interstate railroad is injured, but at a time when such employee was not engaged in interstate traffic, a recovery may be had, if at all, either under the common law or under some state statute. (Wabash R. Co. v. Hayes, 234 U.S. 86, 34 S.Ct. 729, 58 L.Ed. 1226; Vandalia R. Co. v. Stringer, 182 Ind. 676, 106 N.E. 865, 107 N.E. 673.)

GIVENS, J. Budge, C. J., Varian, J., and Baker, D. J., concur. Wm. E. Lee, J., dissents.

OPINION

GIVENS, J.

Arthur Pierce Hulse was killed in the course of his employment with appellant as a section foreman. His widow sought as a dependent compensation under the Idaho Workmen's Compensation Act (C. S. 1919, secs. 6213-6339, as amended).

Appellant railway is a common carrier engaged in interstate and intrastate commerce. Deceased was employed in maintenance of way work. Each section of the right of way was provided with a gasoline motor-car, and, in addition, the railroad provided an extra one to be used in the event that any of the others were out of commission. When not in such use the company permitted the extra car to be used by two of its sectionmen in traveling to and from their farms at Diamond and for this reason required that it be kept, when not in use, at Midvale, the section headquarters nearest Diamond.

The company permitted this use of the car in order to keep in its service two sectionmen who owned farms near their work. Mr. Young, the general manager of the railroad company, testified that the company did not assume to transport its sectionmen and that in this case it was done temporarily and at the convenience of the company. In addition to permitting its use for going to and fro in their work, the men were permitted to use the car, as testified by Superintendent O'Leary, for "their personal use in going to town or anything they wanted." It was an informal arrangement, was not a part of their contract of employment, and while in such use the car could hardly be said to have been in the service of the company.

Hulse, the deceased, for several weeks prior to the fatal accident, had been using the extra motor belonging to the company, pending repairs on his own. He was under instructions to return the company's car to Midvale as soon as his own was returned to him, and he was engaged in this task at the time of the fatal accident. The evidence indicates that when he left his own section at Fruitvale he was riding his own car and towing the car belonging to the company. Several hours later he was found alongside the tracks, seriously injured, from which injuries he later died. The car on which he was riding was found derailed near by.

The sole question to be determined is whether deceased was engaged in interstate or intrastate commerce at the time he was injured. The general nature of the employee's duties is not determinative of this question. Inquiry must be directed to the particular employment at the precise time of the accident. (Illinois Cent. R. R. Co. v. Behrens, 233 U.S. 473, Ann. Cas. 233 U.S. 473, 1914C, 163, 34 S.Ct. 646, 58 L.Ed. 1051; Colasurdo v. Central R. R., 180 F. 832; Foley v. Hines, 119 Me. 425, 111 A. 715; Ewing v. Coal & Coke Ry. Co., 82 W.Va. 427, 96 S.E. 73.)

The test for determining whether any particular employment is a part of interstate commerce has often been declared in the following language:

"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?" (Shanks v. Delaware L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797.)

In the case of Morrison v. Chicago, M. & St. P. R. Co., 103 Wash. 650, 175 P. 325, the supreme court of Washington suggested the following inquiry to determine whether, in any given instance, an employee was or was not engaged in interstate commerce:

"Would the performance of the act in which the employee was engaged directly and immediately tend to facilitate the movement of interstate commerce, or, conversely, would the failure to perform the act directly and immediately interfere with or hinder the movement of such commerce?"

See 10 A. L. R. 1184, note; 14 A. L. R. 732, note; 24 A. L. R. 634, note; 29 A. L. R. 1207, note; 49 A. L. R. 1339, note.

Appellants contend that in returning the motor-car, Hulse was continuing in his employment as a sectionman engaged in maintenance of way work. It cannot be disputed that Hulse's duties, in general, involved maintenance of way, which, it may be conceded, involves interstate commerce (Williams' Admr. v. Chesapeake &amp O. Ry. Co., 181 Ky. 313, 204 S.W. 292; Frazier v. Hines, 260 F. 874), and consequently injuries received in such work are within the protection of the federal Employers' Liability Act and conversely are excluded from the...