Sidney Lawrence v. Rutland Railroad Co

• Decision Date: 06 October 1942
• Citation: 28 A.2d 488,112 Vt. 523
• Parties: SIDNEY LAWRENCE v. RUTLAND RAILROAD CO
• Court: Vermont Supreme Court

28 A.2d 488

112 Vt. 523

SIDNEY LAWRENCE v. RUTLAND RAILROAD CO

Supreme Court of Vermont

October 6, 1942

May Term, 1942.

1. Interstate Commerce.---2. Test of Jurisdiction.---3. Findings of Fact.---4. Ultimate Findings.---5. Purpose of P. L 6287.---6. 1939 Amendment of Federal Employer's Liability Act.

1. If an employee of a railroad, at the time of an accident, is employed in interstate commerce, his claim for compensation is under the Federal Employer's Liability Act, and the state statute does not apply.

2. The test of whether the federal or state employer's liability act applied to an employee's injury, prior to the 1939 amendment of the federal act, is whether the employee's occupation at the time of injury is in interstate transportation, or in work so closely related thereto as to be practically a part of it.

3. When in proceedings under the Workmen's Compensation Act findings of the Commissioner are unchallenged, his award must stand if the findings fairly and reasonably tend to support it; and every reasonable intendment is in favor of the award.

4. A finding that an employee is not engaged in interstate commerce is a finding of fact.

5. The primary purpose of P. L. 6287 is to prevent the spread of thistles and noxious weeds from railroad lands to those of adjoining owners.

6. The 1939 amendment of the Federal Employer's Liability Act bringing within the scope of that statute any employee of a carrier any part of whose duties is the furtherance of interstate commerce can only apply when there are findings or necessary inferences from findings, that the employee is so employed.

APPEAL from Commissioner of Industrial Relations, Rutland County Howard E. Armstrong, Commissioner. Award in favor of claimant. Affirmed.

No error having been made to appear, the award is affirmed, with costs. Let the result be certified to the Commissioner of Industrial Relations.

Asa S. Bloomer for claimant.

E W. Lawrence for the employer.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

JEFFORDS

This is an appeal from an award in favor of the claimant by the Commissioner of Industrial Relations. The accident upon which the claim for compensation is based is stated in the notice and application for a hearing as having occurred on August 8, 1941. Upon hearing the Commissioner found that the defendant is a common carrier by railroad principally engaged in interstate commerce. In May, 1940, the claimant was employed by the defendant and while helping repair the track after a washout he injured his back and was unable to work for three or four days following the accident. He then returned and continued to work quite regularly for the defendant, doing odd jobs for others outside his railroad time of four or five days a week. On August 8, 1941, the claimant was employed by the defendant on its main line a few miles south of Vergennes on a machine known as a weeder. This is a motor car having appliances attached to and extending from it which cuts the weeds from the ballast on the right of way and pull them up from the same and then smooth the furrows made by this pulling operation. "The weeding is done in the summer before a certain date, generally in compliance with the state law (P. L. 6287) requiring that all weeds growing within the surveyed boundaries of the railroad be cut and destroyed between July 1 and 15 in each year."

On the day in question the weeder did not contain any person or thing en route from or to any place beyond this state and it had not come from and was not destined to any place beyond the state.

The claimant who was a "wing man" on the car reached out to pick up the heavy drag chain and in doing so strained his back which hurt him in the same spot as on the occurrence of May 20, 1940, when he lifted the pipe. The claimant at the time of the accident was instructing another employee in the operation of the appliances on his side of the machine.

After the accident the claimant continued to work for a little over two weeks but his back continued to pain him and he went to a doctor and then to a hospital where he was confined at the time of the hearing. The Commissioner found that the claimant had been totally disabled from his back injury from August 25, 1941, to the date of hearing and also made findings as to his average weekly wages.

The Commissioner held that on August 8th the weeder was not an instrumentality of interstate transportation of commerce and was not then being used in such commerce; that the claimant at this time was not employed in such commerce, and was not so employed at the time of the first accident; that the evidence tends to show and he holds that at the time of both accidents the particular service in which the claimant was engaged was not interstate transportation of commerce or in work so closely related to it as to be practically a part of it, so that the case does not come within the purview of the Federal Employers' Liability Act, 45 U.S.C. A. sec. 51 and consequently he (the Commissioner) has jurisdiction of the case. There was a finding and a holding that the claimant's back injuries of May 20, 1940, and August 8, 1941, were personal injuries by accident arising out of and in the course of his employment with the defendant.

An order was made that the receiver of the defendant pay to the claimant weekly compensation of $ 8.20 from September 1, 1941, until total disability due to the second accident has ended but not to exceed 260 weeks.

The defendant excepted to the various holdings of the Commissioner and to the award. The only exceptions briefed relate to the jurisdiction of the Commissioner. The defendant states, in substance, as grounds for its exceptions that both the claimant and the defendant were engaged in interstate commerce at the time of both accidents within the meaning of the federal act so that the Vermont Workmen's Compensation Act does not apply; that the claimant at the time of each accident was an employee of a carrier, a part of whose duties was the furtherance of interstate or foreign commerce or which directly or closely and substantially affected such commerce.

If the claimant was employed in interstate commerce on August 8, 1941, his consequent rights from the accident arose under the Federal Employers' Liability Act and our statute does not apply. This statement of the law is not questioned by either party and could not well be. See N.Y. C. R. Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536. The criterion of applicability of the federal statute, as set forth in the cases arising prior to the amendment to the act hereinafter referred to and discussed as to its application to the facts in the present case, is the employee's occupation at the time of his injury in interstate transportation or work so closely related thereto as to be practically a part of it. N.Y. N. H. & H. R. Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 76 L.Ed. 370, 77 A.L.R. 1370; Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797. With these rules for a guide, the only question for our determination is whether the defendant has shown error in the holdings of the Commissioner on this jurisdictional matter. The answer must be found in the findings of facts made by the Commissioner. Since these findings are unchallenged the award must stand if they fairly and reasonably tend to support it. Blake v. American Fork & Hoe Co., 99 Vt. 301, 304, 131 A. 844. Every reasonable intendment will be made and doubtful findings are to be so read, if they reasonably may be, as to support the award. Campbell v. Ryan, 112 Vt. 238, 240, 22 A.2d 502; Manchester v. Townshend, 110 Vt. 136, 144, 2 A.2d 207; Gillespie v. Vt. Hosiery & Machinery Co., 109 Vt. 409, 415, 199 A. 564.

The statements of the Commissioner to the effect that the claimant at the time of this accident was not engaged in interstate transportation or commerce although denominated by him as "holdings" are properly to be considered as findings of fact. Plass v. Central N.E Ry. Co., 221 N.Y. 472, 117 N.E. 952; Id., 226 N.Y. 449, 569, 621, 123 N.E. 852. In our opinion other findings upon which this ultimate fact is apparently based fairly and reasonably tend to support the latter. Applying the before mentioned rules of construction it sufficiently appears,...