Van Dusen v. Department of Labor and Industries

• Decision Date: 08 September 1930
• Docket Number: 22414.
• Parties: VAN DUSEN v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

290 P. 803

158 Wash. 414

VAN DUSEN v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 22414.

Supreme Court of Washington

September 8, 1930

Department 2.

Appeal from Superior Court, Spokane County; Chas. H. Leary, Judge.

Claim for a widow's pension under the Workmen's Compensation Act, filed by Florence Buss Van Dusen with the Department of Labor and Industries of the State of Washington. An order of the department rejecting the claim was affirmed by the superior court, and claimant appeals.

Affirmed.

F. M O'Leary and G. M. Ferris, both of Spokane, for appellant.

John H Dunbar and Harry Ellsworth Foster, both of Olympia, for respondent.

MAIN J.

This is an appeal from a judgment of the superior court affirming an order of the department of labor and industries denying an application for a widow's pension under the Workmen's Compensation Act (Laws 1911, p. 345, as amended).

March 18, 1929, Donald L. Van Dusen, while in the employ of the Northwest Radio Service Company, was killed, and thereafter his widow, Florence Buss Van Dusen, filed a claim with the department of labor and industries, as stated. The Northwest Radio Service Company is a corporation, and owns and operates radio station KGA, at Spokane, this state. The station is operated with 5,000 watts power, under license from the federal radio commission. The station at all times was connected by telephone lines with cities in other states for the purpose of receiving and rebroadcasting programs originating in New York, Chicago, St. Louis, Kansas City, and San Francisco. In the course of the operation of the station it became necessary to install an ice machine for the purpose of producing cold water, which was used in cooling the radio tubes employed in the transmitting station, and unless the tubes were properly cooled the transmission of programs from the stations mentioned would be seriously impaired, if not altogether stopped. March 17, 1929, the station signed off for the night at approximately 11:15 p. m. Immediately thereafter the employees of the station commenced operations for the installation of the ice machine, and in doing so it was necessary to move the switchboard in the room in which the ice machine was to be located. The switchboard was an integral part of the apparatus used in the transmitting station in broadcasting programs from KGA. While moving, or attempting to move, the switchboard, Donald L. Van Dusen was accidentally electrocuted. His death occurred at about 12:15 a. m. March 18, 1929. Mr. Van Dusen was an employee of the radio station and at the time of his death was engaged in work classified as extrahazardous, under the Workmen's Compensation Act. It is admitted that station KGA, during the hours that it was broadcasting, was carrying on a business interstate in character.

The question is whether the removal of the switchboard, preparatory to the installation of the ice machine, was a work so closely related to interstate commerce, in which the station was engaged, as to be a part of such commerce. If Mr. Van Dusen, at the time of his death, was engaged in work so closely related to interstate commerce as to be practically a part of it, the department of labor and industries correctly rejected the widow's claim for pension, and the judgment of the superior court should be affirmed.

In Shanks v. Delaware, etc., Railroad Company, 239 U.S. 556, 36 S.Ct. 188, 189, 60 L.Ed. 436, L. R. A. 1916C, 797, the railroad company was engaged in both interstate and intrastate transportation, and was conducting an extensive machine shop for repairing parts of locomotives used in such transportation. While employed in this shop, one Shanks was injured through the negligence of the company. On the day of the injury he was engaged solely in taking down and putting into a new location an overhead crank shaft, a heavy shop fixture through which power was transmitted to some of the machinery used in the repair work. It was there held that Shanks could not maintain an action under the Federal Employers' Liability Act (45 USCA §§ 51-59) because at the time of his injury he was not engaged in work so closely related to interstate commerce as to be a part of it. The previous cases of the court were there reviewed. We will quote extensively from the opinion in that case, wherein in was said:

'Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion (see Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 49 L.Ed. 518, 525), and that 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?

'Applying this test, we have held that the requisite employment in interstate commerce exists where a car repairer is replacing a drawbar in a car then in use in such commerce ( Walsh v. New York, New Haven & Hartford R. R., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44); where a fireman is walking ahead of and piloting through several switches a locomotive which is to be attached to an interstate train and to assist in moving the same up a grade ( Norfolk & Western Ry. v. Earnest, 229 U.S. 114, 33 S.Ct. 654, 57 L.Ed. 1096, Ann. Cas. 1914C, 172), where a workman about to repair a bridge regularly used in interstate transportation is carrying from a tool car to the bridge a sack of bolts needed in his work ( Pedersen v. Del., Lack. & West. R. R., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153); where a clerk is on his way through a railroad yard to meet an inbound interstate freight train and to mark the cars so the switching crew will know what to do with them when breaking up the train ( St. Louis, San Francisco & Texas Ry. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156); where a fireman, having prepared his engine for a trip in interstate commerce, and being about to start on his run, is walking across adjacent tracks on an errand consistent with his duties ( North Carolina R. R. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159); and where a

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