Spokane & I.E. Ry. Co. v. Wilson

• Decision Date: 19 November 1918
• Docket Number: 14667,14870,14871.
• Court: Washington Supreme Court
• Parties: SPOKANE & I. E. RY. CO. et al. v. WILSON et al., Industrial Insurance Commission.

176 P. 34

104 Wash. 171

SPOKANE & I. E. RY. CO. et al. v. WILSON et al., Industrial Insurance Commission.

Nos. 14667, 14870, 14871.

Supreme Court of Washington, En Banc.

November 19, 1918

Appeal from Superior Court, Thurston County; John R. Mitchell Judge.

Three actions by the Spokane & Inland Empire Railway Company, by the Yakima Valley Transportation Company, and by the Washington Water Power Company, against John M. Wilson and others, as the Industrial Insurance Commission. From the judgment rendered, plaintiffs appeal. Decree directed for plaintiffs.

Tolman and Fullerton, JJ., dissenting.

Richards & Fontaine, of North Yakima, and Post Russell, Carey & Higgins and Graves, Kizer & Graves, all of Spokane, for appellants.

W. V Tanner, of Olympia, and John A. Homer, of Seattle, for respondents.

MAIN, C.J.

These three actions against the Industrial Insurance Commission where the appellants seek to be excluded from the operation of the Workmen's Compensation Act (Laws 1911, p. 345) all call for the interpretation of the amendment to section 18 thereof contained in Session Laws 1917, p. 96, which reads as follows:

'Inasmuch as it has proved imposible in the case of employés engaged in maintenance and operation of railways doing interstate, foreign and intrastate commerce, and in maintenance and construction of their equipment, to separate and distinguish the connection of such employés with interstate or foreign commerce from their connection with intrastate commerce, and such employés have, in fact, received no compensation under this act, the provisions of this act shall not apply to work performed in the maintenance and operation of such railroads or performed in the maintenance or construction of their equipment, or to the employés engaged therein, but nothing herein shall be construed as excluding from the operation of this act railroad construction work, or the employés engaged thereon: Provided, however, that common carriers by railroad engaged in such interstate or foreign commerce and in intrastate commerce shall, in all cases where liability does not exist under the laws of the United States, be liable in damages to any person suffering injury while employed by such carrier, or in case of the death of such employé to his surviving wife and child or children, * * * then to the parents, sisters, or minor brothers, residents of the United States at the time of such death and who were dependent upon such deceased for support, to the same extent and subject to the same limitations as the liability now existing or hereafter created, by the laws of the United States governing recoveries by railroad employés injured while engaged in interestate commerce.'

1. The Spokane & Inland Empire Railway Company operates an electric system of railways consisting of street car lines in Spokane and suburban and interurban lines into Spokane, two of the interurban lines extending into the state of Idaho. The company also operates an electric power plant on the Spokane river. All of these operations are under one control and are conducted as a whole. The interurban railway lines constitute the greater portion of the company's business. The number of employés on the interurban and street car lines cannot be segregated, since the street car lines are combined with suburban lines in so far as the operation of cars, the repair shops, and the care of tracks are concerned. The power generated by the power department is used principally for railroad purposes, from 15 per cent. to 25 per cent. being sold commercially. The power sold is what is known as 'surplus' power, which is available only when the river is at its higher stages. There is no segregation of expenses in the power department between that required to generate the power used for railroad purposes and that sold commercially, nor is there any segregation possible with respect to the power used for the movement of interstate and intrastate traffic. The urban cars carry no interstate traffic, but interstate trains run and interstate traffic is carried over all portions of the street car lines.

2. The Washington Water Power Company operates an electric car system in and about the city of Spokane, which system consists of twenty routes, all of them except one being operated exclusively for the carrying of passengers in and about the city of Spokane. On one line operating principally for the carriage of passengers wholly within this state, the cars carry mail coming from and destined to points outside of the state. In addition to the urban routes, the company operates two branch interurban railways extending from Spokane to Cheney wholly within the state. This interurban line is used in addition to carrying interstate passengers and freight in carrying express, freight, and mail, some of which is transported in continuous passage between points on the interurban line and points in other states, the tracks being physically connected with the tracks of the Northern Pacific Railway, the Great Northern Railway the Spokane, etc., Ry., the Ohio...