Vaught v. East Tennessee & W. N. C. Ry. Co.

• Decision Date: 10 November 1923
• Citation: 255 S.W. 595,148 Tenn. 379
• Parties: VAUGHT v. EAST TENNESSEE & W. N. C. RY. CO.
• Court: Tennessee Supreme Court

255 S.W. 595

148 Tenn. 379

VAUGHT v. EAST TENNESSEE & W. N. C. RY. CO.

Supreme Court of Tennessee.

November 10, 1923

Appeal from Law Court of Johnson City; D. A. Vines, Judge.

Proceedings under the Workmen's Compensation Statute by Will Vaught for compensation for injuries, opposed by the East Tennessee & Western North Carolina Railway Company, employer. Petition dismissed and petitioner appeals. Affirmed.

HALL J.

The petitioner, Will Vaught, filed his petition in the law court at Johnson City, Tenn., against East Tennessee & Western North Carolina Railway Company, seeking compensation under the workmen's compensation statute (chapter 123, Acts of 1919) for an injury sustained by him in January, 1922, while in the employ of defendant, and which injury arose out of and in the course of his employment.

Defendant answered the petition, setting up the following defenses:

First. It was denied that petitioner's injury arose out of and in the course of his employment.

Second. That defendant was an interstate railroad operating between Johnson City, Tenn., and Cranberry, N. C., and at the time petitioner sustained his injury both defendant and petitioner were engaged in interstate commerce, and therefore the workmen's compensation statute was inapplicable to said injury.

Third. That no notice was given defendant of said accident and injury, as required by the provisions of the workmen's compensation statute.

Fourth. That prior to the filing of the petition in this cause petitioner instituted a common-law action for damages against defendant in the law court at Johnson City, Tenn., seeking to recover for his injury growing out of the same accident which suit was pending at the time of the filing of the petition in this cause, and said common-law action was pleaded and relied on by defendant as a complete bar to petitioner's claim in the present action.

Upon the trial in the court below before the circuit judge without the intervention of a jury, it was held that petitioner was injured in the course of his employment, and that the injury arose out of said employment; that petitioner gave a good and sufficient excuse for his failure to give defendant notice of the injury within 30 days, as required by the workmen's compensation statute. However, the court was of the opinion that petitioner's employment was that of interstate commerce at the time he was injured, and for this reason alone he was not entitled to prosecute his petition, and the same was accordingly dismissed.

From this judgment both petitioner and defendant have appealed to this court; defendant appealing from so much of the judgment as held its other defenses were not sustained.

The only question presented by the assignments of error of petitioner is: Was the trial court correct in holding that he was engaged in interstate commerce at the time of sustaining his injury?

It is conceded by counsel for petitioner that if he were so engaged then the workmen's compensation statute has no application to his injury, and that he would not be entitled to recover. Therefore we will first determine this question in the disposition of the case, and, if the judgment of the trial court is correct, it will be unnecessary to pass on defendant's assignments of error.

By section 6 of the compensation statute it is provided as follows:

"That this act shall not apply to:

(a) Any common carrier doing an interstate business while engaged in interstate commerce."

The proof showed that defendant operates a line of railroad between Johnson City, Tenn., and Cranberry, N. C., and that petitioner was employed by defendant at the time of his injury in the capacity of a truck handler at its freight station at Johnson City that his duty was that of loading and unloading freight on and from cars coming into Johnson City, and going out therefrom. At the time petitioner was injured he was loading freight into an interstate car destined for a point in North Carolina, but into which also some intrastate shipments were being loaded; and at the moment of his injury petitioner was engaged in loading into said car an intrastate shipment, consisting of some oats in sacks, and while handling the truck upon which the oats had been placed it turned over and fell on or against petitioner and injured him. Petitioner insists that because he was actually engaged in loading into said interstate car, at the time of his injury, an intrastate shipment, his employment was intrastate rather than interstate, and therefore the workmen's compensation statute is applicable to his injury.

In Shanks v. Delaware, L. & W. R. Co. 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797, it was held that the true test of employment in interstate 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?"

In that case it was held that where a railroad company was engaged in both interstate and intrastate transportation, conducting a machine shop for repairing locomotives used in such transportation, an employee, who was injured while taking down and putting up fixtures in such machine shop, was not engaged in interstate commerce. And, in applying the test above quoted, the court said:

"It is plain that Shanks was not employed in interstate transportation, or in repairing or keeping in usable condition a roadbed, bridge, engine, car or other instrument then in use in such transportation. * * * The connection between the fixture and interstate transportation was remote at best, for the only function of the fixture was to communicate power to machinery used in repairing parts of engines some of which were used in such transportation."

It was held, in Lehigh Valley R. Co. v. Barlow, 244 U.S. 183, 37 S.Ct. 515, 61 L.Ed. 1070, that a switchman was not engaged in interstate commerce while moving from a siding to an unloading trestle three cars of coal which had, some three weeks before, been brought from another state.

In Chicago, B. & Q. R. Co. v. Harrington, 241 U.S. 177 36 S.Ct. 517, 60 L.Ed. 941, it was held that an employee who was killed while engaged at defendant's Kansas City terminal yards, as a member of a switching crew in transporting...