Nicholas v. Reading Co.

• Decision Date: 30 January 1942
• Docket Number: 42-1941
• Citation: 24 A.2d 63,147 Pa.Super. 308
• Parties: Nicholas v. Reading Company, Appellant
• Court: Pennsylvania Superior Court

24 A.2d 63

147 Pa.Super. 308

Nicholas v. Reading Company, Appellant

No. 42-1941

Superior Court of Pennsylvania

January 30, 1942

Argued December 9, 1941.

Appeal from judgment of C. P. Lehigh Co., April T., 1940, No. 1, in case of Elizabeth Nicholas v. Reading Company.

Appeal by claimant from decision of Workmen's Compensation Board making award.

The facts are stated in the opinion of the Superior Court.

Appeal sustained and award revoked, opinion by Henninger, J Defendant appealed.

Error assigned, among others, was the action of the court below in sustaining claimant's appeal.

Judgment affirmed.

Harold Butz, of Butz, Steckel & Rupp, for appellant.

Robert E. Haas, with him Morris Efron, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Rhodes, J.

This is a workmen's compensation case. The question raised on this appeal is whether the deceased, Thomas F. Nicholas, was engaged in interstate transportation at the time he was accidentally killed on September 13, 1937, in the course of his employment with defendant, or in work so closely related to such transportation as to be practically a part of it. See Chicago & North Western Ry Co. v. Bolle , 284 U.S. 74, 78, 52 S.Ct. 59, 76 L.Ed. 173; Chicago & Eastern Illinois R. Co. v. Industrial Commission of Illinois et al., 284 U.S. 296, 298, 52 S.Ct. 151, 76 L.Ed. 304, 77 A. L. R. 1367. If the nature of deceased's employment meets these requirements redress is under the Federal Employers' Liability Act, 45 U.S.C. A. § 51 et seq. (Second Employers' Liability Cases, 223 U.S. 1, 55, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A., N. S., 44), but if the accident occurred while deceased was engaged in intrastate transportation or outside of interstate transportation our state workmen's compensation laws control (Jordan v. Erie R. Co., 146 Pa.Super. 134, 138, 22 A.2d 116).

Claimant, twenty-nine years of age, is the daughter of deceased. On August 22, 1938, she filed a claim petition with the Workmen's Compensation Board under our Workmen's Compensation Act of 1915, as amended, 77 PS § 1 et seq. In September, 1938, as administratrix of the estate of Thomas F. Nicholas, she brought an action against defendant in the United States District Court for the State of New Jersey, seeking to recover damages for the death of deceased under the Federal Employers' Liability Act, 45 U.S.C. A. § 51 et seq., and the Safety Appliance Act, 45 U.S.C. A. § 1 et seq. Claimant, in her claim petition and at the hearing before the referee, requested that the petition be held in abeyance until such time as the suit in the federal court was determined. Her request was denied. The referee found that deceased was engaged in intrastate transportation at the time of his death, and made an award for funeral expenses. He further found that there were no dependents who were entitled to compensation under our Workmen's Compensation Act, 77 PS § 1 et seq. Claimant appealed to the board, and maintained that her remedy was under the Federal Employers' Liability Act, 45 U.S.C. A. § 51 et seq. The board affirmed the referee's findings of fact, conclusions of law, and award for funeral expenses. Claimant then appealed to the court of common pleas which held, as a matter of law, that deceased was engaged in interstate transportation at the time of his death. From the judgment in its favor, defendant has appealed.

The court below pertinently said: "The case presents the unusual features of an appeal by the person in whose favor an award has been made and of an insistence by the defendant upon being bound by the award. The explanation for this situation is that claimant has a suit pending before the federal courts to enforce a claim arising under the Federal Employers' Liability Act and desires to prosecute that suit to judgment. Defendant probably courts our forum because there is no apparent dependency upon which a large workmen's compensation award could be based." Claimant's dilemma is the result of trying to play safe by instituting an action in two different forums.

A final judgment for compensation under our workmen's compensation laws would be conclusive in the federal court, and could not be attacked collaterally by claimant. Chicago, Rock Island & Pacific Ry. Co. v. Schendel, Adm'r, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A. L. R. 1265. A reversal of the award will not prevent defendant from raising the question here involved in the federal courts, as their decisions are controlling (Mayers v. Union R. Co., 256 Pa. 474, 475, 100 A. 967), and decisions of the state courts, while persuasive, are not binding upon them (Spokane, Portland & Seattle Ry. Co. v. Martin, 9 Cir., 80 F.2d 322, 325).

The undisputed facts are these: On September 13, 1937, and for some time prior thereto, deceased was in the employ of defendant as a member of a train crew. On that day he was a flagman on a freight train which contained nine cars and operated from East Penn Junction at Allentown, Pa., to Kutztown, Pa. One of the cars, containing wheat, was billed from Buffalo, N. Y., and consigned to Macungie, Pa. The other cars were in intrastate service. Macungie, the point of destination of the car of wheat, is on the Allentown-Kutztown run, and is a short distance beyond and west of Emmaus, Pa.; both towns are situated in Lehigh County. The Donaldson Iron Company is located at Emmaus. The train crew had standing instructions to do such intermill shifting operations at the private yards of the iron company as that company might require. When the train left East Penn Junction at Allentown on the morning of the day of the accident, the conductor in charge had received no instructions relative to any movement of cars at the yards of the iron company. On arrival at the iron company the train crew delivered two cars of coke, and the foreman of the iron company requested the train crew to move a car loaded with pipe from what was known as the "new dock" track to the "old dock" track and into the machine shop. For this shifting operation defendant assessed a charge in accordance with its tariff schedule. Due to the extreme curvature of the "old dock" track it was necessary to have twelve cars ahead of the engine in addition to the car to be placed in the machine shop. When the train arrived at the yard it was made up of seven cars, including the car destined for Macungie from Buffalo. The seven cars, including the interstate car, and the engine and tender, remained intact. The entire train picked up additional cars standing in the yard of the iron company for the purpose of making the shifting movement. While thus engaged, deceased was killed as the train was picking up, for use as a pusher, an empty car located on the "new dock" track. After the accident the intermill movement of the car loaded with pipe was completed. The car of wheat was then taken to its destination at Macungie, Pa.

As the facts are not in controversy, the nature of the employment is a question of law. Philadelphia & Reading Ry. Co. v. Hancock, 253 U.S. 284, 285, 40 S.Ct. 512, 64 L.Ed. 907; Niblett v. Pennsylvania R. Co., 146 Pa.Super. 587, 23 A.2d 62.

It is a recognized principle that if one of the cars of the train was interstate in character the entire train assumed an interstate character. Koons et ux. v. Philadelphia & Reading Ry. Co., 271 Pa. 468, 470, 114 A. 262. That deceased's employment also extended to intrastate cars is, for present purposes, of no importance. Erie R. Co. v. Winfield, 244 U.S. 170, 173, 37 S.Ct. 556, 61 L.Ed. 1057. Contrary to appellant's apparent intimation, the fact that the train operated wholly within the State of Pennsylvania did not change the character of the shipment or the nature of deceased's employment. New York Central & Hudson River R. Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298; Philadelphia & Reading Ry. Co. v. Hancock, supra; Miller v. Lehigh Valley R. Co., 138 Pa.Super. 8, 14, 9 A.2d 917; Evans v. United States Railroad Administration et al., 191 A.D. 704, 182 N.Y.S. 310. Service by one of several transportation carriers may be wholly within one state in relation to interstate shipments, but it is still a part of interstate transportation.

Appellant contends that the intermill shifting of the cars at the yard of the iron company removed deceased from interstate transportation, and that, therefore, our Workmen's Compensation Act, 77 PS § 1 et seq., governs. We do not agree.

It is the established rule that the status of an employee with respect to interstate commerce where the service is separable is tested by the work that he is actually performing at the time (Illinois Central R. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051), but frequently cases arise where the employment is concerned at the same time with both interstate and intrastate transportation and the two are not separable (Elder v. Pennsylvania Railroad Co., 118 Pa.Super. 137, 143, 180 A. 183). "As the federal law supersedes the state law, so do acts done thereunder, and where intra- and interstate acts are mingled, or at times alternate there is no separation. The interstate feature predominates and by it must the questioned act be judged. "To separate duties by moments of time or particular incidents of its exertion would be to destroy its unity ....': Phila. & Reading Ry. Co. v. Di Donato [256 U.S. 327, 331, 41 S.Ct. 516, 65 L.Ed. 955]": Koons et ux. v. Philadelphia & Reading Ry. Co., supra, 271 Pa. 468, at page 470, 114 A. 262, at page 263.

A car being moved from a point in one state to a point in another is impressed with the character of interstate transportation which will follow and attend the shipment until the transit ceases. Rich v. St. Louis &...