Kidder v. Marysville & A. Ry. Co.

• Citation: 300 P. 170,160 Wash. 471
• Decision Date: 16 June 1931
• Docket Number: 22640.
• Court: United States State Supreme Court of Washington
• Parties: KIDDER v. MARYSVILLE & A. RY. CO. et al.

300 P. 170

160 Wash. 471

KIDDER v. MARYSVILLE & A. RY. CO. et al.

No. 22640.

Supreme Court of Washington, En Banc.

June 16, 1931

Appeal from Superior Court, Snohomish County; Adam Beeler, Judge.

Opinion in department approved, and judgment appealed from reversed with instructions.

For departmental opinion, see 295 P. 162.

J. A. Coleman and Robert Mulvihill, both of Everett, for appellants.

Joseph H. Smith and Louis A. Merrick, both of Everett, for respondent.

BEALS, J.

After the filing of the departmental opinion in this case (295 P 162), the attorney general, as amicus curiae, on behalf of the department of labor and industries, filed a petition for rehearing, suggesting that a pertinent statute of the state of Washington should be considered by the court in determining the issues presented, and praying that the case be reheard by the court sitting en banc. Respondent also filed her petition praying for a rehearing, and, the petitions having been granted, the cause was reargued to the entire court.

Section 19, chapter 28, p. 96, Session Laws of 1917, as amended by Laws 1919, p. 134, § 1 (Rem. Comp. Stat. § 7693), reads as follows: 'Inasmuch as it has proved impossible in the case of employees engaged in maintenance and operation of railways doing interstate, foreign and intrastate commerce and in maintenance and construction of their equipment, to separate and distinguish the connection of such employees with interstate or foreign commerce from their connection with intrastate commerce, and such employees have, in fact received no compensation under this act, the provisions of this act shall not apply to work performed in the maintenance and operation of such railroads or performed in the maintenance or construction of their equipment, or to the employees engaged therein, but nothing herein shall be construed as excluding from the operation of this act railroad construction work, or the employees engaged thereon Provided, however, that common carriers by railroad engaged in such interstate or foreign commerce and in intrastate commerce shall, in all cases where liability does not exist under the laws of the United States, be liable in damages to any person suffering injury while employed by such carrier, or in case of the death of such employee to his surviving wife and child, or children, and if no surviving wife and child or children, then to the parents, sisters, or minor brothers, residents of the United States at the time of such death, and who were dependent upon such deceased for support, to the same extent and subject to the same limitations as the liability now existing, or hereafter created, by the laws of the United States governing recoveries by railroad employees injured while engaged in interstate commerce.'

By chapter 84, p. 98, Laws Ex. Sess. 1925 (Rem. Comp. Stat. 1927 Supp. § 7693), the foregoing act was amended so as to limit its application to the 'employees of common carriers by railroad, engaged in maintenance and operation of railways doing interstate, foreign and intrastate commerce,' etc., the effect of the amendment being to limit the application of the statute to the employees of such railroads as are common carriers.

Respondent based her claim in the court below and in the first argument before this court solely upon the ground that appellants, at the time of the accident which resulted in the death of her husband, were engaged in interstate commerce, and that therefore the cause was within the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59), and that that statute alone was applicable, every possible remedy under the state laws being excluded. Respondent's position up to the time of the filing of her petition for rehearing is clearly stated in her brief as follows: 'The appellants seem to be laboring under the opinion that the respondent in this case had a choice of two rights, either of which she might pursue, but, as we have endeavored to state heretofore, it is our contention and our theory that she never had but one right, that if the appellants were engaged in interstate commerce, then her cause of action existed solely by reason of the Federal Employers' Liability Act, and gave rise to no right under the Workmen's Compensation Act, or any state statute, either in accord or to the contrary.'

It appears beyond question from the evidence introduced at the trial, there being no evidence to the contrary, that even though appellants occasionally hauled carloads of lumber which later became interstate shipments, respondent's husband, at the time of the accident which resulted in his death, was not engaged in work which was in any way connected with hauling any such freight, nor was he then participating to even the least extent in interstate commerce. This court, therefore, held, in harmony with abundant authority, both federal and state, that under the record before us respondent was not entitled to maintain her action or recover judgment under the federal statute. On this point the department opinion was right, and the same is hereby approved. That opinion, however, in view of the state statute now brought to our attention, does not dispose of the case, and a further examination of the facts and the law applicable thereto is necessary.

Under the section of the Workmen's Compensation Act above quoted, and the amendment thereto, if a common carrier by railroad is engaged in both interstate and intrastate business, its employees engaged in intrastate business do not come under the provisions of the act providing for compensation, but there is thereby created as to them a statutory right of action practically identical with that which the federal act provides for employees of railroads engaged in interstate commerce. Spokane & Inland Empire Ry. Co. v. Wilson, 104 Wash. 171, 176 P. 34. The operations of the logging railroad with which we are here concerned were confined to Snohomish county. Under the evidence contained in the record now before us, a trier of the facts might find in regard to the nature of the railroad's business (1) that the railroad was a private intrastate carrier ( State ex rel. Silver Lake Ry. & Lumber Co. v. Public Service Commission, 117 Wash. 453, 201 P. 765, 203 P. 3), (2) that it was a common carrier engaged in intrastate business only, or (3) that it was a common carrier engaged in both intrastate and interstate business. It is evident that reasonable minds might differ on the facts as to the proper classification within which the railroad should be placed.

It is not denied that the department of labor and industries, long prior to the accident which resulted in Mr. Kidder's death, determined that the logging railroad for which Mr Kidder was working was within the purview of the Workmen's Compensation Act and therefore under the jurisdiction of the department. Appellants contend that respondent is estopped from maintaining this action because she submitted her claim for compensation under the Workmen's Compensation Act to the department of labor and industries and, the department having found in favor of respondent upon her...