N. Pac. Ry. Co. v. Indus. Comm'n

• Decision Date: 03 December 1929
• Parties: NORTHERN PAC. RY. CO. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 243

227 N.W. 948

NORTHERN PAC. RY. CO.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Dec. 3, 1929.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge. Affirmed.

Action by the Northern Pacific Railway Company against the Industrial Commission to set aside and vacate an award under the Workmen's Compensation Act to Bessie Bloxham, widow of Thomas A. Bloxham, deceased. Judgment for plaintiff, and defendants appeal. Affirmed.--[By Editorial Staff.]

Action commenced by plaintiff to set aside and vacate an order of the Industrial Commission of Wisconsin, which awarded certain sums of money to the defendant Bessie Bloxham as a death benefit and to reimburse her for funeral expenses for her husband, Thomas A. Bloxham, who died as the result of injuries sustained by him while in the employment of the plaintiff.

The defendant Bessie Bloxham, as administratrix of her husband's estate, had first commenced an action in the district court of Minnesota against the Northern Pacific Railway Company for damages because of her husband's death, and alleged that at the time of injury both the husband and the Northern Pacific Railway Company were “actively and actully engaged in interstate commerce.” That action was settled on December 31, 1926, by the payment to Bessie Bloxham of $3,565 and her execution of a release to the Northern Pacific Railway Company. On January 19, 1927, she filed a petition with the Industrial Commission of Wisconsin, alleging that she had a claim against the Northern Pacific Railway Company which was within the jurisdiction of that commission, and that the payment which she had received should be considered as a payment on account of compensation.

The commission concluded that at the time of injury the deceased and the Northern Pacific Railway Company were subject to the provisions of sections 102.03-102.35, Wis. Stats., and made its award to Bessie Bloxham. The circuit court entered judgment vacating the award, and defendants appeal from that judgment.John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Cadigan & Cadigan, of Superior, for appellants.

Hanitch, Hartley, Johnson & Fritschler, of Superior (D. F. Lyons and Frederic D. McCarthy, both of St. Paul, Minn., of counsel), for respondent.

FRITZ, J.

The learned circuit judge concluded that at the time of the injury Thomas A. Bloxham was employed in interstate commerce, and that consequently the defendant commission had no jurisdiction to enter an award.

There is no dispute as to the facts. Plaintiff operates a railway system extending from the city of Superior, Wis., through Minnesota to the Pacific Coast. At the city of Superior it maintains, as an integral part of its system, an ore dock for the transfer, from its railway cars to vessels, of ore which is in transit from Minnesota mines, via the city of Superior, to other ports on the lower Great Lakes. As the capacity of the vessels is from 7,000 to 12,000 tons, it is necessary, in order to provide a supply for uninterrupted loading when the vessel arrives, to accumulate ore for two or three days in pockets on the dock, from which it is run through spouts into the vessels.

Bloxham was killed on the ore dock as he was setting in motion electrical machinery to raise a spout from a vessel into which he and others, similarly in the employment of the plaintiff, were spouting ore. They had partly loaded the vessel, and a fellow employee was lowering another spout to continue loading. The ore which Bloxham was loading was part of a shipment destined to Cleveland, Ohio, and had been hauled by plaintiff from the Minnesota mines to its Superior ore dock, and there dumped by plaintiff's employees into its pockets for transfer to the vessel. The plaintiff's service was not fully performed until it had completed the delivery of the ore into the vessel. For that service it was paid at a rate, approved by the Interstate Commerce Commission, of 91 cents per ton, which was computed on the basis of 81 cents for transportation to the dock, and 10 cents for the transfer at the dock. That rate was obtainable only on through shipments from the Minnesota mines to ports on the lower Great Lakes.

[1] The plaintiff's services in relation to the ore which Bloxham was engaged in loading when he was injured, including the transfer and reloading of the ore at its superior dock, as well as the hauling thereof from the Minnesota mines to that dock, were all performed in furtherance of an interstate shipment and interstate commerce. Even if plaintiff's only service had been the handling on its dock at Superior, of this shipment of ore, which was in transit from Minnesota to Ohio, that service was in...