Jensen v. Southern Pacific Co.

• Decision Date: 13 July 1915
• Citation: 109 N.E. 600,215 N.Y. 514
• Parties: JENSEN v. SOUTHERN PAC. CO.
• Court: New York Court of Appeals Court of Appeals

215 N.Y. 514

109 N.E. 600

JENSEN

v.SOUTHERN PAC. CO.

Court of Appeals of New York.

July 13, 1915.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding by Marie Jensen, for compensation under the Workmen's Compensation Law, against the Southern Pacific Company, employer and self-insurer. From an order of the Appellate Division (152 N.Y.Supp. 1120) confirming an award, the master appeals. Affirmed.

Norman B. Beecher, of New York City, for appellant.

Egburt E. Woodbury, Atty. Gen. (E.C. Aiken, of Albany, of counsel), for respondent.

Visscher, Whalen & Austin, of Albany, for New York Cent. R. Co., as amici curiae.

MILLER.

The claimant's husband was killed on August 15, 1914, while employed in unloading the steamship El Oriente, which was berthed alongside a pier in the Hudson river. When the accident occurred he was moving an electric truck upon a gangway connecting the vessel with the pier. The appellant, a corporation of the state of Kentucky, is a common carrier by railroad. It also owned and operated said steamship, which plied between New York and Galveston, Tex. It does not appear that the steamship was in any way operated in connection with a line of railroad, and in its report of the accident the appellant stated its business to be “transportation by steamships engaged solely in interstate commerce.” We are required, on this appeal: First, to construe the Workmen's Compensation Law (chapter 67 of the Consolidated Laws; L.1914, c. 41) in so far as it relates to this case; and, second, to determine its constitutional validity. The scheme of the statute is essentially and fundamentally one by the creation of a state fund to insure the payment of a prescribed compensation based on earnings for disability or death from accidental injuries sustained by employees engaged in certain enumerated hazardous employments. The state fund is created from premiums paid by employers based on the pay roll, the number of employees, and the hazards of the employment. The employer has the option of insuring with any stock corporation or mutual association authorized to transact such business, or of furnishing satisfactory proof to the commission of his own financial ability to pay. If he does neither, he is liable to a penalty equal to the pro rata premium payable to the state fund during the period of his noncompliance, and is subject to a suit for damages by the injured employe, or his legal representative in case of death, in which he is deprived of the defenses of contributory negligence, assumed risk, and negligence of a fellow servant. By insuring in the state fund, or by himself or his insurance carrier paying the prescribed compensation, the employer is relieved from further liability for personal injuries or death sustained by employees. Compensation is to be made without regard to fault as a cause of the injury, except where it is occasioned by the willful intention of the injured employe to bring about the injury or death of himself or another, or results solely from his intoxication while on duty. Compensation is not based on the rule of damages applied in negligence suits, but in addition to providing for medical, surgical, or other attendance or treatment and funeral expenses, it is based solely on loss of earning power. Thus the risk of accidental injuries occurring with or without fault on the part either of employe or employer is shared by both, and the burden of making compensation is distributed over all the enumerated hazardous employments in proportion to the risks involved. So much for the general outline of the scheme against whose justice or economic soundness nothing, that occurs to me, can be said.

The particular provisions requiring construction are the following:

“Sec. 2. Application.-Compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous employments: * * *

“ ‘Group 8. The operation, within or without the state, including repair, of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company. * * *

“ ‘Group 10. Longshore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other products or materials, or moving or handling the same on any dock, platform or place, or in any warehouse or other place. storage.’ ”

“Sec. 114. Interstate Commerce.-The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also in interstate or 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, except that such employer and his employees working only in this state may, subject to the approval and in the manner provided by the commission and so far as not forbidden by any act of Congress, accept and become bound by the provisions of this chapter in like manner and with the same effect in all respects as provided herein for other employers and their employees.

It is claimed that loading and unloading are included in “operation,” and that therefore the case falls within Group 8, which excepts vessels of other states or countries used in interstate or foreign commerce, but the specific enumeration of longshore work in group 10 excludes such work from the other group. DB1 [1] It is next claimed that the statute was not intended to apply to employment in interstate or foreign commerce, and that in case of doubt that construction should be adopted, for otherwise it would offend against the commerce clause of the federal Constitution by imposing a burden upon such commerce. The latter claim will be noticed first. The statute does not purport directly to regulate or impose a burden upon commerce, but merely undertakes to regulate the relations between employers and employees in this state. Such regulation may, and no doubt does, indirectly affect commerce, but to the extent that it may affect interstate or foreign commerce it is plainly within the jurisdiction of the state, until Congress by entering the field excludes state action. Sherlock v. Alling, 93 U.S. 99, 23 L.Ed. 819;Morgan's Steamship Co. v. Board of Health, 118 U.S. 455, 6 Sup.Ct. 1114, 30 L.Ed. 237;Reid v. Colorado, 187 U.S. 137, 23 Sup.Ct. 92, 47 L.Ed. 108;Simpson v. Shepard, 230 U.S. 352, 33 Sup.Ct. 729, 57 L.Ed. 1511, 48 L.R.A. (N.S.) 1151;Erie R.R. Co. v. Williams, 233 U.S. 685, 34 Sup.Ct. 761, 58 L.Ed. 1155, 51 L.R.A. (N.S.) 1097.

[2] Literally construed, section 114 makes the statute apply only to intrastate work, either done by itself or in connection with, but clearly separable and distinguishable from, interstate or foreign commerce. But, though the section is awkwardly phrased, it is manifest that a broader application was intended, else the clause “for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States” is meaningless. The Legislature evidently intended to regulate, as far as it had the power, all employments within the state of the kinds enumerated. The earlier sections are in terms of general application, and section 114, which is headed “interstate Commerce,” is one of limitation, not of definition. Its obvious purpose was to guard against a construction violative of the Constitution of the United States, and so it provided that the act should apply to interstate or 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 intrastate work affected may or shall be clearly separable or distinguishable therefrom. In other words, the Legislature said that it did not intend to enter any field from which it had been or should be excluded by the action of the Congress of the United States. But it is said that Congress may at any time regulate employments in interstate or foreign commerce, and that the case is one in which a rule “may be established,” etc. Again, the spirit, not the letter, must control. If it had been intended to confine the application of the act to intrastate work, the Legislature would doubtless have said so in a sentence. The words “may be” should be construed in the sense of “shall be.”

[3] One other question in respect of the application of the act remains to be considered. It is said that the appellant is a carrier by railroad, and that therefore the federal Employers' Liability Act of April 22, 1908 (35 Stat.L. 65), prescribes the rule governing the employment in which the deceased was engaged. As far as this case is concerned the appellant is a carrier by water. Its business is transportation by steamships, which, as far as appears, may not, even indirectly, be related to transportation by railroad, certainly not by any particular line of railroad. It is significant that the earlier federal statute of June 11, 1906, c. 3073 (34 Stat.L. 232), applied to “every common carrier” engaged in interstate or foreign commerce, whilst the present act applies only to carriers by railroad. There is nothing in the act indicative of a purpose to apply it to carriage by water, if it happen to be conducted by a railroad corporation, and not otherwise-to apply one rule of liability to transportation by a steamship line, if owned and operated by a railroad corporation, and a different rule...