Steward v. Industrial Commission of Utah

• Decision Date: 26 October 1932
• Docket Number: 4978
• Citation: 15 P.2d 334,80 Utah 394
• Court: Utah Supreme Court
• Parties: STEWARD et al. v. INDUSTRIAL COMMISSION OF UTAH et al

15 P.2d 334

80 Utah 394

STEWARD et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4978

Supreme Court of Utah

October 26, 1932

Original proceeding in the Supreme Court by Diana E. Steward widow of Charles E. Steward, for herself and minor daughters to review a decision of the State Industrial Commission denying compensation for fatal injuries alleged to have been sustained by deceased while in the course of his employment by the Utah & Oregon Short Line Railroad Company, employer and self-insurer.

AFFIRMED.

P. C. Evans, of Salt Lake City, for plaintiffs.

Geo. P. Parker, Atty. Gen., and Geo. H. Smith, R. B. Porter, and W. Hal Farr, all of Salt Lake City, for defendants.

FOLLAND, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

This is a proceeding to review a decision of the Industrial Commission of Utah denying compensation. Plaintiffs, the widow and children of Charles E. Steward, allege that Steward died as a result of injuries sustained in the course of his employment by the Oregon Short Line Railroad Company, a self-insurer. The defendant employer denied liability on two grounds, namely, that the employee was engaged in interstate commerce at the time of his alleged injuries and hence the Industrial Commission was without jurisdiction to make an award, and that the employee did not meet with any accident causing injury but died as a result of disease which was not caused or contributed to by any accident or injury. The Industrial Commission made a finding to the effect that the employee was engaged in interstate commerce at the time of the alleged injuries, concluded it was without jurisdiction to make an award, and thereupon denied compensation. No finding was made by the commission on the other question involved. The only question on this review is whether or not the finding that the employee was engaged in interstate commerce at the time of the alleged injury is supported by the evidence.

The evidence is brief and without conflict. The defendant operates a railroad in Utah, Idaho, and other states and is engaged in interstate and intrastate commerce. It has installed and maintains along its interstate railroad certain signal devices known as "block signals," which are used for the purpose of safely operating both its interstate and intrastate trains. The block signals are operated by means of electric current supplied by storage batteries. The deceased employee worked under the direction of the signal supervisor of the railroad company. His duty was to gather up, recharge, and again place in position in the block signal system the storage batteries used to operate such signals on the main line of the railroad between Salt Lake City, Utah, and Oxford, Idaho. There were 290 batteries in use between these points, and each battery was changed and recharged every 35 days. On each Monday the employee went out on the railroad line with the battery car and took a certain number of charged batteries. He placed these in position in the various block signals and took up a similar number of used batteries for the purpose of recharging them. These used batteries he took to the shop in Salt Lake City where, during the balance of the week, he would recharge the batteries. On each Saturday he would load the charged batteries in the battery car and on the Monday following would go out on the road with the charged batteries and exchange them for used batteries in the various block signals and return with the used batteries and recharge them as before. His last day of work was a Saturday. On that day he had finished charging eight batteries which he had taken up the previous Monday, and loaded them in the battery car in readiness to be taken out on the road the following Monday morning. These batteries were taken out and placed in the block signal system by another employee. Steward took ill with pneumonia and died a few days later. It is claimed his illness was caused or contributed to by the irritating fumes given off by the batteries in process of charging.

Where an employee is injured while engaged in work directly relating to interstate commerce, the Industrial Commission has no jurisdiction to award compensation, since the Federal Employers' Liability Act (45 USCA §§ 51-59) furnishes the exclusive remedy. The general test as to whether an employee is subject to the provisions of the Federal Employers' Liability Act is usually stated to be that if at the time of injury he was engaged in interstate commerce, or the work was directly related to such commerce or so closely connected with it as to be a part of interstate commerce, then he is subject to the act. Conway v. Southern Pacific Company, 67 Utah 464, 248 P. 115, 49 A. L. R. 1316; Peters v. Industrial Commission, 74 Utah 140, 277 P. 408. In applying the test specifically to facts similar to those in the case at hand, the rule adopted is that an employee is employed in interstate commerce when making repairs, working upon, or keeping in usable condition instrumentalities used in interstate commerce. Shanks v. Delaware, Lackawanna & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Southern Pacific Co. v. Industrial Commission, 71 Utah 248, 264 P. 965; Coal & Coke Ry. Co. v. Deal (C. C. A.) 231 F. 604.

It is conceded by plaintiff, and could not well be denied, that the storage batteries were used in interstate commerce when operating the block signal system on the main line railroad. They were instrumentalities used in interstate commerce. There can be no serious question that the work of installing and removing the batteries from their position along the railroad tracks would be interstate in character. Pedersen v. Delaware, Lackawanna & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 650, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; Grow v. O. S. L. R. Co., 44 Utah 160, 138 P. 398, Ann. Cas. 1915B, 481; Saxton v. El Paso & S.W. R. R., 21 Ariz. 323, 188 P. 257; Halley v. Ohio Valley Elec. Ry. Co., 92 W.Va. 172, 114 S.E. 572.

An employee who is required to keep in repair electric signals and to direct and control the operation of intrastate and interstate trains on an interstate railroad is engaged in interstate commerce. Richey, Federal Employers' Liability (2d Ed.) p. 73; Cincinnati, N. O. & T. R. R. Co. v. Bonham, 130 Tenn. 435, 171 S.W. 79; Bauchspies v. Central Railroad Co. of N. J., 287 Pa. 590, 135 A. 728.

Plaintiffs' contention is that the batteries were withdrawn from interstate commerce during the time they were in the shop being recharged and that the employee while working in the shop charging batteries was not engaged in interstate commerce and therefore was within the protection of the Workmen's Compensation Act of this state (Comp. Laws 1917, § 3061 et seq., as amended). Whether the employee's work in charging batteries was interstate commerce must be determined by reference to the test above stated and the cases decided with respect thereto. The Supreme Court of the United States has laid down no rule or test other than that stated, and measured by that test has remitted the decision of each to its particular facts.

It will be noted that the batteries were taken out from the block signal system for the specific purpose of recharging so as to be replaced in the block signal system at the end of a week. If the batteries were not kept charged the block signals would fail to operate. This work was necessary to the proper and safe operation of the interstate trains over defendant's railroad tracks. The recharging of the batteries bears analogy to the repairs on an engine when withdrawn from service and placed in the repair shop. Courts have frequently held that an engine withdrawn from service for a general overhauling loses its character as an interstate instrumentality and that one then working on it is not engaged in interstate commerce, but it is generally held that where the engine is assigned to interstate commerce and is undergoing repairs between trips or is withdrawn from service for a fixed time and for particular repairs to again be placed in interstate use after the repairs are made, that a workman making such repairs is engaged in interstate commerce. Larkin v. Ind. Com. of Utah, 60 Utah 274, 208 P. 500; Peters v. Ind. Com. of Utah, 74 Utah 140, 277 P. 408; Kuchenmeister v. Los Angeles & S. L. R. Co., 52 Utah 116, 172 P. 725, 728; Oglesby v. St. Louis-San Francisco Ry. Co., 318 Mo. 79, 1 S.W.2d 172, 175. In Larkin v. Ind. Com., supra, the injury occurred May 4th while the employee was working on an engine withdrawn from interstate service for general repairs on April 27th. The engine remained in the shop until May 13th. The employee was held not engaged in interstate commerce while making the repairs. In Kuchenmeister v. Los Angeles & S. L. R. Co., supra, the holding was that the employee working on engine repairs was engaged in interstate commerce. It was there said that "the plaintiff was injured while engaged in repairing an instrumentality which before the injury had been exclusively used in interstate commerce and was being repaired so as to be again used for the same purpose and was so used after the injury."

In Peters v. Ind. Com., supra, the employee when injured was lighting an acetylene torch for the purpose of making repairs on an engine withdrawn from interstate use not for the purpose of general repairs or overhauling, but for specific repairs to a broken brake hanger, the engine to again be used in interstate commerce. This court held the facts were sufficient to support a finding that the repairs on the brake hanger on the engine were so closely related to interstate transportation as to be a part thereof and affirmed an order of the Industrial Commission dismissing...