Prader v. Pennsylvania R. Co.

• Citation: 49 N.E.2d 387,113 Ind.App. 518
• Decision Date: 22 June 1943
• Docket Number: 17057.
• Parties: PRADER v. PENNSYLVANIA R. CO.
• Court: Court of Appeals of Indiana

49 N.E.2d 387

113 Ind.App. 518

PRADER v. PENNSYLVANIA R. CO.

No. 17057.

Appellate Court of Indiana, in Banc.

June 22, 1943

Reed & Reed, of Knox, for appellant.

Pickens Gause & Pickens, of Indianapolis, for appellee.

CRUMPACKER Presiding Judge.

This is an appeal from an award of the Industrial Board of Indiana wherein the appellant, Henry Prader, was denied compensation for an alleged accidental injury to his person arising in the course of his employment by appellee, the Pennsylvania Railroad Company, as a section hand. Issues were joined by the appellant's petition on the Industrial Board's prescribed form No. 9 and an answer by the appellee in two paragraphs, the first of which alleged, in substance, that previous to and at the time of the appellant's injury said appellee had excepted itself, as provided by law, from the operation of the Workmen's Compensation Act Burns' Ann.St. § 40-1201 et seq. It is agreed by both parties that there is insufficient evidence in the record to sustain this paragraph of answer, and there is no question concerning it involved in this appeal. In its second paragraph of answer the appellee defends upon the theory that at the time of his injury a part of appellant's duty was in furtherance of interstate commerce and therefore the Industrial Board is without jurisdiction in the matter. Hearing by a single member was waived and the cause was tried originally to the Full Industrial Board which in due course entered the following finding: "The Full Industrial Board of Indiana now finds for the defendant against the plaintiff on plaintiff's application Form 9 filed on the 21st day of October, 1941, for the reason that the Industrial Board of Indiana is without jurisdiction in the premises and that the exclusive remedy of the plaintiff is under the Federal Employers' Liability Act as amended in 1939 and not under the Workmen's Compensation Act of Indiana." The award predicated upon this finding is consistent therewith and its legality is the sole question presented by this appeal.

The entire evidence in the case consists of a stipulated set of facts from which we gather the following: On July 29, 1941 the appellant was in the employ of the appellee as a section hand at an average weekly wage of $21.60. His work consisted of repairing and maintaining the road bed and track on a main line of the appellee's railroad, which track was used in interstate commerce and over which trains transporting passengers and freight through Indiana and other states were operated by the appellee. It was the custom of the appellee to designate each day one or another of the members of the section gang then working on its tracks as a flagman, whose duty it was to warn his fellow employees of the approach of trains over the track upon which they were then engaged. Pay for this service was covered by the employee's regular compensation as a section hand. On the morning of July 29, 1941, the appellant was engaged in the performance of his ordinary duties in connection with the maintenance of certain of the appellee's tracks then being used in interstate commerce. He was interrupted in this work by his foreman who instructed him to go to the village of Hanna, Indiana, some six miles distant, for the purpose of procuring a "rule book" through which he was to familiarize himself with the duties of a flagman and thereby qualify for the occasional service above described. He was directed to make this trip by automobile over U. S. Highway No. 30, which approximately parallels the appellee's right-of-way from the point where he was then working to said village of Hanna. Enroute the automobile which he was driving collided with another vehicle on the highway and he received the injury complained of and as a result thereof he was temporarily totally disabled from July 29, 1941, to February 10, 1942.

It is clear, on the above facts, that were there no question of interstate commerce and the appellant's connection therewith involved in this case, he would be entitled to recover as provided by the Indiana Workmen's Compensation Act, and, therefore, the sole question for our determination is whether the Federal Employers' Liability Act, as amended in 1939, 45 U.S. C.A. § 51 et seq., has deprived him of that remedy.

Justice Van Devanter, speaking for the Supreme Court of the United States in Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 1912, 223 U.S. 1, 32 S.Ct. 169, 174, 56 L.Ed. 327, 38 L.R.A., N.S., 44, says this: "It does not admit of doubt * * * that Congress, in the exertion of its power over interstate commerce, may regulate the relations of common carriers by railroad and their employees, while both are engaged in such commerce, subject always to the limitations prescribed in the Constitution, and to the qualification that the particulars in which those relations are regulated must have a real or substantial connection with the interstate commerce in which the carriers and their employees are engaged." It has also been held that in the exercise of such power Congress may determine exclusively the obligation of interstate carriers to compensate their employees for injuries received in the discharge of their duties connected with interstate commerce. Erie R. Co. v. Winfield, 1917, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057, Ann.Cas. 1918B, 662; Second Employers' Liability Cases, supra; North Carolina R. Co. v. Zachary, 1914, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591; Baltimore & Ohio R. Co. v. Interstate Commerce Comm., 1911, 221 U.S. 612, 31 S.Ct. 621, 55 L.Ed. 878; National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893.

Congress entered this field in 1906 when it enacted the first Employers' Liability Act, which, however, was subsequently declared unconstitutional because it attempted to regulate the liability of carriers in interstate commerce for any injury to any employee, even though his employment had no connection whatever with interstate commerce. The Employers' Liability Cases (Howard v. Illinois Cent. R. Co.), 1908, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297. The second and present act became law in 1908, and until it was amended in 1939, 45 U.S.C.A. § 51 et seq., its scope was limited, by judicial interpretation, strictly to liability for injuries to employees who were actually engaged in interstate commerce when injured, leaving redress under the state law open in the event the employee was injured otherwise. Wabash R. Co. v. Hays, 1914, 234 U.S. 86, 34 S.Ct. 729, 58 L.Ed. 1226; Hogarty v. Philadelphia & Reading Railway Company, 1916, 250 U.S. 650, 40 S.Ct. 12, 63 L.Ed. 1189; Raymond v. Chicago, Milwaukee & St. P. Ry. Co., 1917, 243 U.S. 43, 37 S.Ct. 268, 61 L.Ed. 583; New York Central R. Co. v. White, 1917, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A. 1917D, 1, Ann.Cas.1917D, 629.

For cases within its scope, however, there was no remedy for the employee or liability on the part of employer except as in said Act provided. Mondou v. New York, New Haven & Hartford Railroad Co., 1912, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Delaware, L. & W. R. Co. v. Yurkonis, 1915, 238 U.S. 439, 35 S.Ct. 902, 59 L.Ed. 1397; Southern R. Co. v. Howerton, 1914, 182 Ind. 208, 105 N.E. 1025, 106 N.E. 369; Vandalia R. Co. v. Stringer, 1915, 182 Ind. 676, 106 N.E. 865, 107 N.E. 673; Chesapeake & Ohio R. Co. v. Fultz, Adm'x, 1930, 91 Ind.App. 639, 161 N.E. 835; New York Cent. R. Co. v. Porter, 1917, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536.

The United States Supreme Court in New York Central R. Co. v. Winfield, 1917, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, L.R.A., 1918C, 439, Ann.Cas.1917D, 1139, expressed the rule in these words: "The liabilities and obligations of interstate railroad carriers to make compensation for personal injuries suffered by their employees while engaged in interstate commerce are regulated both inclusively and exclusively by the Federal Employers' Liability Act; and, Congress having thus fully covered the subject, no room exists for state regulation, even in respect of injuries occurring without fault, as to which the federal act provides no remedy."

This court has spoken on the subject as follows: "The authorities all agree * * * that the federal law is exclusive within the scope of its operation. It is the same as though it were a part of the state law, and it supersedes and takes the place of all state statutes within its scope and field." Grand Trunk, etc., R. Co. v. Thrift Trust Co., 1918, 68 Ind.App. 198, 115 N.E. 685, 689, 116 N.E. 756. See, also, Central Indiana Ry. Co. v. Mitchell, 1936, 102 Ind.App. 121, 199 N.E. 439; Chesapeake & Ohio R. Co. v. Russo, 1930, 91 Ind.App. 648, 163 N.E. 283; Southern R. Co. v. Howerton, supra.

On August 11, 1939, Congress amended the Federal Employers' Liability Act of 1908, and as it is upon this amendment that the appellee rests its defense we quote the same in full "Any...