Sullivan v. New York, N.H. & H. R. Co.

• Decision Date: 18 October 1926
• Citation: 134 A. 795,105 Conn. 122
• Parties: SULLIVAN v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

134 A. 795

105 Conn. 122

SULLIVAN v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

October 18, 1926

Case Reserved from Superior Court, New Haven County; Earnest C Simpson, Judge.

Proceeding by Agnes Sullivan under the Workmen's Compensation Act for the death of her husband, Edward J. Sullivan, opposed by the New York, New Haven & Hartford Railroad Company. The Commissioner made a finding and an award in favor of claimant, and defendant appealed to the superior court, which reserved the case for the advice of the Supreme Court of Errors. Superior court advised to affirm the award and dismiss the appeal.

The record discloses the following facts to have been found by the commissioner as corrected by the superior court:

Edward J. Sullivan, plaintiff's decedent, had been employed under a contract of employment with the defendant as a clerk in its station at Derby, Conn., for a considerable time next before December 30, 1924. His average wage computed according to law, was $30.24 a week. Each of these parties was, within certain limitations and under certain circumstances, subject to the provisions of our Workmen's Compensation Law (Gen. St. 1918, § § 5339-5414). The defendant is a corporation owning and operating railroads in Connecticut, portions of Massachusetts, and portions of New York. On this day the decedent was a man of unusual strength and muscular activity; if he had any physical defect it was latent. The plaintiff was the lawful wife of the deceased, living with him and being regularly supported by him during his lifetime.

The Derby station, its platform, waiting and baggage rooms were used for interstate and local and intrastate commerce, for serving and accommodating passengers, for the handling of baggage, and for the protection and shelter of baggage, tickets, mail, and parcel post. Both station and waiting room were instruments of interstate and intrastate commerce. Decedent's employment on this day included the oversight and protection of the station, platforms, appurtenant rooms, the handling of interstate and intrastate baggage and freight, the selling of tickets, and the checking of baggage in interstate and intrastate commerce, the handling of mail, the taking care of the furnace, and the sweeping of the passenger station, the looking after the toilets, the turning off of the electric lights for the station and locking its door on leaving it after the day's work.

Decedent assisted on this day in placing upon the mail car on train No. 279 mail destined for points outside Connecticut. After this train had left the Derby station the decedent's duties for the day were finished with the exception of assisting in putting away a truck which was used in interstate and intrastate commerce, extinguishing the station lights, and locking up the station. There is a light in the ticket office of the passenger station which is left burning through the night. This light is not connected with the switch hereinafter referred to. The other lights in the station, including lights in the toilets, in the passenger waiting room, and on a platform, are all controlled by a switch of the type known as a " knife switch," located in the ticket office. These lights were necessary for the comfort and convenience of passengers in, and defendant's employees engaged in, interstate and intrastate commerce; they were also necessary in loading mail and parcel post on trains, and for the conduct of defendant's business in interstate and intrastate commerce. While decedent was trying to turn off these lights, his right hand came in contact with those portions of the switch carrying electric current, which passed into and through his body; he was found by a fellow workman lying on the floor in an unconscious condition gasping for breath, with his feet near this switch and his overcoat, which had been hanging on a hook near the switch lying on the floor. A physician was summoned by telephone as soon as possible; when he reached the station the decedent was dead. The commissioner concluded that the decedent met with death from an electric shock received in an effort to turn off these lights with this switch.

Harry M. French, of New Haven, for appellant.

Robert J. Woodruff, of New Haven, and Patrick B. O'Sullivan, of Derby, for appellee.

CURTIS, J. (after stating the facts as above).

The commissioner held that it was the work which the deceased was doing at the precise time when his injury occurred which was decisive, and held that the deceased met with his death by reason of an injury arising out of and in the course of his employment, and that his employment when he met with this injury was not a part of interstate commerce, but was such an employment as to bring the parties within the provisions of our Compensation Act, and therefore awarded the plaintiff, the wife of the deceased, the compensation provided by the act.

The defendant assigns as reasons of appeal: (1) That this conclusion of the commissioner is legally inconsistent with the subordinate facts found by him. (2) That the commissioner had no jurisdiction, because both employer and employee were at the time of the injury complained of engaged in interstate commerce. (3) That the commissioner erred in his conclusion that the decedent was not engaged in interstate commerce at the time of the injury complained of.

The case is reserved for the advice of this court upon the grounds stated.

These reasons of appeal raise the question whether under the facts found the decedent at the time he was injured was engaged in interstate commerce. If he was so engaged, his dependent is not entitled to compensation under our Workmen's Compensation Act, but must seek her remedy under the federal Employers' Act (U. S. Comp. St. § § 8657-8665). The dependent cannot take her choice of remedies under these acts. Gruszewsky v. Director General of Railroads, 96 Conn. 119, 113 A. 160.

The commissioner found that the deceased met with death from an electric shock received in an effort to turn off the lights as above recited, and made an award as above stated. The defendant claims, under the facts found, that the commissioner had no jurisdiction to make such award, because Sullivan when injured was engaged in interstate commerce.

The true test by which to determine whether an employee of a railroad was engaged in interstate commerce when injured is that laid down in numerous cases, and in Shanks v. Del., L. & W. R. R., 239 U.S. 556, on page 558 (36 S.Ct. 188, 189 [60 L.Ed. 436, L.R.A. 1916C, 797]), it is thus stated:

" The true test of employment in such commerce in the sense intended is, Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?"

The court also said:

" The question for decision is, Was Shanks at the time of the injury employed in interstate commerce within the meaning of the Employers' Liability Act? What his employment was on other occasions is immaterial, for, as before indicated, the act refers to the service being rendered when the injury was suffered."

The court also held that the term " the service being rendered when the injury was suffered" in the federal act refers not to the service being rendered in general by the employee or to that being rendered on the day of the injury, but to the service being rendered at the very time of the injury. Ill. Cent. R. R. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas. 1914C, 163.

As was said in Chicago, Burl. & Q. R. R. v. Harrington, 241 U.S. 180, 36 S.Ct. 517, 60 L.Ed. 941:

" It is not important whether he had previously been engaged in interstate commerce, or that it was contemplated that he would be so engaged after his immediate duty had been performed. * * * ‘ The true test is, Was the employé at the time of the injury engaged in interstate transportation?’ "

A rule is thus correctly summarized from the cases in 12 C.J. p. 45:

" It is not sufficient that the general employment of the person injured be of an interstate character or that he be engaged in interstate commerce at a time other than that of his injury, but he must be engaged in interstate commerce at the precise time of his injury. In other words, the particular service in which he is engaged when injured must be of an interstate character."

This principle is well illustrated in the case of Ill. Cent. R. R. v. Behrens, supra. The injured employee was a member of a crew attached to a switch engine in New Orleans. The opinion on page 476 (34 S.Ct. 647), reads:

" The general work of the crew consisted in moving cars from one point to another within the city. * * * Sometimes the cars were loaded, at other times empty. * * * In short, the crew handled interstate and intrastate traffic indiscriminately, frequently moving both at once and at times turning directly from one to the other. At the time of the collision [and injury] the crew was moving several cars loaded with freight which was wholly intrastate. * * * The Circuit Court of Appeals desires instructions [as to] whether upon these facts it can be said that the intestate at the time of * * * injury was employed in interstate commerce within the meaning of the Employers' Liability Act."

The court continues:

" It is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employé is engaged is a part of interstate commerce. * * * ‘ The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?’ " Pedersen v. D., L. & W. R. R., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153.

The United States Supreme Court answered the question submitted...