Moser v. Union Pacific Railroad Co.

• Decision Date: 25 February 1944
• Docket Number: 7150
• Citation: 65 Idaho 479,147 P.2d 336
• Parties: REUBEN MOSER, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellant
• Court: Idaho Supreme Court

147 P.2d 336

65 Idaho 479

REUBEN MOSER, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellant

No. 7150

Supreme Court of Idaho

February 25, 1944

Order for Withdrawal of Petition for Rehearing Granted April 10 1944.

1. Commerce

The test of whether an employee of railroad at time of injury is engaged in "interstate commerce" within meaning of Federal Employers' Liability Act is whether he was engaged in interstate transportation, or in work so closely related to such transportation as to be practically a part of it. (Federal Employers' Liability Act, sec. 1, as amended 45 U.S. C.A., sec. 51.)

2. Master and servant

A railroad operating in interstate commerce is liable in damages to any person suffering injury when he is employed by the railroad in such commerce and injury is due to the railroad's negligence. (Federal Employers' Liability Act, sec. 1, as amended 45 U.S. C.A., sec. 51.)

3. Workmen's compensation

The jurisdiction of state courts and tribunals over case involving injury to employee of railroad should be surrendered only where lack of jurisdiction is clearly shown to exist and any doubt should be resolved in favor of the state's retaining jurisdiction. (I.C.A., sec. 43-901 et seq.; Federal Employers' Liability Act, sec. 1, as amended, 45 U.S. C.A., sec. 51.)

4. Commerce

Workmen's compensation

Where railroad employee was injured while working on new construction which was not in service but which when completed would be used in both interstate and intrastate commerce, employee was not engaged either in "interstate commerce" or "intrastate commerce" at time of injury and was not within Federal Employers' Liability Act, but State Industrial Accident Board had jurisdiction under the Workmen's Compensation Law. (I.C.A., sec 43-901 et seq.; Federal Employers' Liability Act, sec. 1 as amended, 45 U.S. C.A., sec. 51.)

5. Workmen's compensation

Where railroad employee was injured while working on new construction which had not been put into service, finding of Industrial Accident Board supported award of compensation in favor of employee. (I.C.A., sec. 43-901 et seq.)

Order for Withdrawal of Petition for Rehearing Granted April 10 1944.

Appeal from the Industrial Accident Board of the State of Idaho.

Affirmed.

L. H. Anderson and H. B. Thompson for appellant.

When a part of an employee's duties is the maintenance or repair of tracks used for the transportation of interstate trains, such duties constitute employment in interstate commerce. (New York Cent. R. Co. v. Porter, 249 U.S. 168, 63 L.Ed. 536; New York Cent. R. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045; Philadelphia B. & W. R. Co. v. Smith, 250 U.S. 101, 63 L.Ed. 869; Louisiana Ry. & Nav. Co. v. Williams, (5 Cir.) 272 F. 439.)

The amendment of August 11, 1939 to the Federal Employers' Liability Act did not restrict its provisions, but broadened the scope of the act and brings employees within its provisions which before the amendment were frequently held by the courts to be governed and controlled by the state compensation acts. (Ermin v. Penn. R. Co., 36 F.Supp. 936; Louisville & N. R. Co. v. Potts (Tenn.) 158 S.W.2d 729; Wright v. New York Cent. R. Co., 33 N.Y.S. (2d) 531; Piggue v. Baldwin (Kans.) 121 P.2d 183.)

The Federal Employers' Liability Act establishes a rule of regulation which is intended to operate uniformly in all the states, and in that field it is both paramount and exclusive. (Erie R. Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; New York Cent. R. Co. v. Porter, 249 U.S. 168, 63 L.Ed. 536; Mondou v. N.Y., N.H. & H.R. Co., 223 U.S. 1, 56 L.Ed. 327; New York Cent. R. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045.)

Elam & Burke and Clarence L. Hillman for respondent.

The Industrial Accident Board has jurisdiction herein; it was not precluded from jurisdiction by the 1939 amendment of the Federal Employers' Liability Act. (45 U.S.C.A. 51.)

Employee of railroad company working on a new construction project is not engaged in interstate commerce. (Raymond v. Chicago, Milwaukee & St. Paul Railway Co., 61 L.Ed. 583, 37 S.Ct. 268; Louisville & N. R. Co. v. Morgan's Adm'rs., (Ky.) 9 S.W.2d 212; Gulf M. & R. W. v. Moddey (Miss.) 200 So. 119, 277 P. 426.)

The Federal Employers Liability Act covers field only, of injuries caused by negligence; it does not cover injuries occurring in course of employment and not chargeable to negligence on part of employer. This field is not prempted and is left open for state regulation. (Davis v. Department of Labor & Industries, 317 U.S. , 87 L.Ed. 175; Brotherhood of Railroad Trainmen et al. v. Terminal Railroad Assn., 63 S.Ct. 420, 87 L.Ed. 369; Parker, Director of Agriculture et al. v. Brown, 63 S.Ct. 30, 87 L.Ed. 235.)

If congress intended by the 1939 amendment to deprive the state of jurisdiction over intra-state affairs, then such amendment is unconstitutional and void; that which was intra-state prior to the amendment remains so thereafter. (Howard v. Illinois Central R. Co., 28 S.Ct. 141; Mondau v. New York, N.H. & H.R. Co., 32 S.Ct. 169, 56 L.Ed. 327; Shanks v. Del. L. & W. R. Co., 60 L.Ed. 436-239 U.S. 556; Chicago & N.W. R. Co. v. Bolle, 52 S.Ct. 59-76 L.Ed. 173.)

Budge, J. Givens and Dunlap, JJ., concur. Holden, C.J., dissenting. Ailshie, J.

OPINION

Budge, J.

This is an appeal from an award made by the Industrial Accident Board in favor of respondent. Inter alia, the following appears from the findings of fact:

"That on July 16, 1941, the claimant Reuben Moser, was employed by the defendant, Union Pacific Railroad Company, a corporation, as a laborer at or near Nampa, Canyon County, State of Idaho. That while so working on said date he suffered an injury. That at said time claimant was a married man with a dependent wife and two minor children under the age of eighteen years. That he was then earning an average weekly wage of $ 20.64.

* * * *

"That due to the increase in both interstate and intrastate transportation by rail, to facilitate the making up and switching of its trains, to relieve the congestion of traffic in the yard at Nampa, Canyon County, Idaho, and generally to increase the efficiency of its operations, the said defendant, during the month of April, 1941, caused plans to be prepared by its chief engineer for a rearrangement and extension of the said Nampa yard, providing for the installation of new tracks, switches and other facilities, the taking up or replacing, relocating and relaying of old tracks, switches and other facilities, and in general a plan of construction and reconstruction to enlarge said yard. That said project called for the excavating for and construction of approximately four miles of new tracks and thirty-two new switches, the building of a new large icing dock about 900 feet long, and the relocating of tracks and switches to make room for the new icing dock.

"That pursuant to said plan, construction on said project was started May 27, 1941. From the commencement of construction to July 19, 1941, the part of the yard under construction and reconstruction, 'the new part,' was closed to traffic and was not kept in service, although connected by switches with the portion of the yard which was kept in service. On said last mentioned date the new and reconstructed portion of the yard was opened to traffic, but the project was not finished until about August 23 of the same year." (Italics ours.)

The board further found that the first four or five days respondent worked at relocating tracks; that thereafter up and until July 16, 1941, the date of the accident, respondent worked on new construction, by "helping to carry and lay ties and rails, align them, and to shovel and level gravel"; that his duties were wholly in the construction and reconstruction including the new part of the Nampa yard, to be at some future time, when completed, put into service by the railroad company. So we come to the question of whether respondent in working on the construction, which included the new part, which when completed would be used in both interstate and intrastate commerce, was engaged in employment which entitled him to the benefits of the Federal Employers' Liability Act as amended exclusively, and rendered the Industrial Accident Board without jurisdiction.

On July 16, 1941, respondent while working in the Nampa yard project and while shoveling gravel, sustained a serious injury by accident to his back resulting in a severe pain from which he collapsed and fell in a fainting condition between the tracks of Track No. 118, which was new construction and not in service; neither was the balance of the project in service or being used for either interstate or intrastate commerce. As a result of said injury, respondent was totally disabled for work from the date of the accident, July 16, 1941, to October 1, 1942, except intermittently for short periods of time, and he constantly suffered pain to such an extent that he was unable to carry on his usual employment. The board found respondent's total "disability ended, as of October 1, 1942," but that "he is permanently disabled as a result of his said injury and that the degree of such disability is comparable to 20% of the loss of one leg by amputation at the hip."

Based on its findings of fact, the board made among others the following ruling of law:

"That claimant's duties between the time of his employment by the defendant common carrier on June 2, 1941, and the time of his said injury and accident were not in furtherance of interstate or foreign commerce, and did not in any way directly or closely and substantially, affect such commerce but that his duties were wholly in the construction of railroad property to be at some future time, when completed, put to such...