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District Court of Appeal, First District, Division 2, California.


Civ. 15612.

Decided: April 28, 1954

Arthur B. Dunne, Dunne, Dunne & Phelps, San Francisco, for appellant. Sheridan Downey, Jr., Hildebrand, Bills & McLeod, Oakland, for respondent.

This is an appeal from a judgment of $7,000 awarded to plaintiff Gileo for injuries suffered while working as a carman welder for defendant railroad. Plaintiff's action was based on Federal Employers' Liability Act, 45 U.S.C.A. § 51.

Southern Pacific (SP) following World War II undertook a program of acquiring new equipment. Some of the equipment was to go to an SP subsidiary, the Texas & New Orleans Railroad Company (T & NO). In August of 1950 the Board of Directors of SP adopted a resolution to acquire 5,000 units of freight train equipment. Some of the equipment was assigned to SP and some to T & NO. Included in the assignment to the latter were 1,000 gondola freight cars (gons). The gons were to be built in the SP shops at Sacramento. The Southern Pacific Equipment Company (SPEC) determined to build 2,000 of the units including the 1,000 gons assigned to T & NO. The SPEC purchased the necessary materials and entered into a contract with SP under which SP agreed to supply the shop facilities and labor. The labor force worked for SP. SP paid them and billed SPEC for such labor costs.

The SPEC contracted with George Smith and H. J. Wylie, purchasers, to construct, sell and deliver the cars to them. The purchasers then assigned the contract to the Pennsylvania Company for Banking and Trusts pursuant to an agreement made by Smith and Wylie with the Pennsylvania Banking Company and the SP. The Bank was trustee of the Southern Pacific Company Equipment Trust. The SPEC billed the Bank and transferred title to it as trustee.

The Bank then leased the equipment to the SP or to T & NO, as the case might be.

At Sacramento SP has general shops separate from the operating or transportation division. One of these general shops was car shop No. 9, and the new cars were to be constructed there.

Construction began on July 1, 1950. The car shop was divided into two departments, one doing repair work and the other doing new car construction.

The new car construction was done in assembly line fashion on two tracks. The work was interrupted only two days by inclement weather and once due to shortage of materials for approximately one month from the time the work began to the time of trial. During the period when there was a shortage of materials for new construction the construction crews were assigned to repair work in order to keep the force intact. This was before Gileo was assigned to new car construction.

All the men working for SP were on one seniority list and there was no bidding done for an individual job as such. If a man bid for a job in shop No. 9, he would be assigned to a particular job by the supervising staff.

Because of the importance of new car construction, a man assigned to this work was assigned on a continuous basis. However the number of men working on construction varied with the type of car being built. For example 425 men worked on the construction of automobile cars, but only 270 men worked on gons. There was approximately a 10% absenteeism rate and in order to keep the assembly line moving these vacancies were temporarily filled with men working in the repair department. But the men assigned to new construction were not moved temporarily to other jobs in case of short breakdowns and if assigned to other departments were done so on a permanent basis.

Gileo first went to work for SP in the car shop at Sacramento in October 1941. He worked as a helper and apprentice learning the business and became a journeyman carman in April 1946. He also became qualified as a welder.

In February 1951 Gileo bid in for a job as welder in car shop No. 9. He worked on new automobile cars and after that worked on new gondola cars up until the time he was hurt on July 11, 1951. Gileo returned to work on the second day after the accident and again worked on gons until he bid in as an inspector in the car machine shop. Later as a result of the injury he began having recurrent headaches which forced him to leave work from time to time.

Gileo began working on the construction of new gons in April 1951 and from that time until he was hurt he was never assigned any repair work. From February to July he remembers a couple of times in which he did repair work. This work consisted of repairing a machine that had broken down and this machine was used in the construction of new cars.

It was stipulated by both parties that the issue of negligence be decided in favor of plaintiff, that if given judgment he recover $7,000 in damages, that the court discharge the jury and rule as a matter of law whether or not the Federal Employers Liability Act (FELA) applies in this fact situation. The court ruled that as a matter of law at the time plaintiff was injured defendant with respect to its activities connected with the injury was a common carrier engaged in interstate commerce and that the plaintiff's duties as employee included the furtherance of interstate commerce and directly and substantially affected such commerce. It therefore held that FELA is applicable as a matter of law.

The sole contention of appellant is that FELA is not applicable in this fact situation and therefore the trial court had no jurisdiction.

FELA was first passed in 1906 but was declared unconstitutional by the Supreme Court because it gave Congress the power to regulate subjects outside of its scope of authority. In 1908 the Act was made more restrictive in its application to interstate commerce and therefore its constitutionality was sustained. In 1939 the Act was amended because under the case decisions it was necessary that the employee be engaged in interstate commerce at the very moment of injury to fall under the Act. This brought about harsh results in many cases. Therefore the amendment provided that employees ‘any part of whose duties as such employee shall be the furtherance of interstate * * * commerce; or shall in any was directly or closely and substantially affect such commerce * * * shall * * * be considered as entitled to the benefits of this chapter.’ (Emphasis ours.)

The only change made by the 1939 amendment was to give a new definition to the term ‘employee’. In 10 A.L.R.2d 1279 beginning at page 1,281 a quotation from the Senate Judiciary Committee's deliberations on this amendment is made. This quotation recognizes that the difficult question of fact presented in many cases of whether or not at the moment of injury the injured person was engaged in interstate commerce resulted in unfair consequences because of needless expensive litigation and statute of limitations barriers if the plaintiff chose the wrong remedy. Consequently by this amendment Congress wished to abolish the requirement that the employee must be actually engaged in interstate traffic at the moment of injury. However the change from the ‘moment of injury’ test to the ‘duties as such employee’ test still leaves a twilight zone in which the courts must make difficult fact decisions. Both parties agree that the only case squarely considering the question whether an employee of a railroad engaged exclusively in new construction is covered by the FELA is Moser v. Union Pacific Railroad Co., 65 Idaho 479, 147 P.2d 336, 153 A.L.R. 341. In that case the Idaho Supreme Court held that a member of a construction crew engaged in the construction of new tracks and switches and a large icing dock was not covered by the FELA. This decision was by a closely divided court.

We need not decide whether this case was correctly decided on its facts, because in our case SP was not engaged in directly manufacturing new cars for its own use. It was manufacturing the cars under contract with a separate corporation and after their manufacture title was transferred to another corporation which in turn leased the cars to SP or, in the case of the gons on which Gileo was working for a considerable period before his injury, to T & NO, a different railroad company. Under the facts of this case we are satisfied that SP was in no different position than a manufacturer, not engaged in railroading, which was manufacturing railroad cars to be delivered to any purchaser.

The more difficult question arises from the facts that Gileo was employed generally in the carshop and that he could at any time have been assigned to the repair work being done in the carshop, as evidenced by the fact that before he entered the carshop the crew engaged in new car construction was in fact transferred to repair work in the shop during the period when there was a shortage of material for new car construction. From these facts can it be said that a ‘part’ of Gileo's ‘duties' ‘directly or closely and substantially’ affected interstate commerce?

The question is pointed up by three decisions which seem most closely in point. In Wright v. New York Cent. R. Co., 263 App.Div. 461, 33 N.Y.S.2d 531, quoting from the opinion: ‘Claimant usually worked in intrastate commerce for five days a week and in interstate commerce for one day a week * * * when injured, he was engaged in intrastate commerce.’ The court held that since a part of the claimant's duties were in interstate commerce he was covered by the FELA even though on the day of his injury he was engaged exclusively in intrastate commerce. This case was affirmed by the Court of Appeals, 288 N.Y. 719, 43 N.E.2d 97, and the U. S. Supreme Court denied certiorari, Industrial B'd of State of N. Y. v. New York Cent. R. R. Co., 317 U.S. 668, 63 S.Ct. 73, 87 L.Ed. 537.

In Scarborough v. Pennsylvania R. Co., 154 Pa.Super. 129, 35 A.2d 603, a railroad signalman whose duties were generally in interstate commerce had for three weeks been engaged in installing new station lights when he was injured. The court held that even if this installation work did not fall under the definition of the FELA, i. e., if at the time of injury his work was exclusively intrastate, a part of his duties were in interstate commerce. The court said in 35 A.2d at page 606: ‘Taking into consideration that Scarborough's general duties were in interstate commerce, and that he was subject to call at all times for such service * * * he continued to be employed as a signalman * * *. He was subject to call to do temporary work, such as he was doing when injured, but the fact remains that he was always available to perform his general duties, which were in the furtherance of interstate commerce.’

In Robinson v. Pennsylvania R. Co., D.C., 113 F.Supp. 863 a railroad carpenter was a member of a bridge repair crew which at times worked on railroad bridges and at times on highway bridges which crossed the railroad tracks. For almost 2 months before his injury he had been engaged exclusively in repairing a highway bridge. The court assumed that this work was exclusively intrastate, but none the less held that a part of the claimant's duties were in interstate commerce, saying in 113 F.Supp. at page 865:

‘Perhaps there may be situations where a railroad employee, whose work includes duties of both an interstate and intrastate nature, is engaged in work of an intrastate nature for so long a period that he will lose the coverage of the Act, but the present case, in my opinion, does not involve one of these situations.’

These three cases have broadly construed the FELA to include within its scope employees who for a considerable period of time (5 days, 3 weeks, nearly 2 months) have been employed exclusively in intrastate commerce, where the general scope of duties performed by them over a longer period has included and would continue to include interstate employment.

The line must still be drawn somewhere. By adopting the ‘any part of whose duties' test the Congress has abolished the ‘moment of injury’ test, but it has still left open the question under what circumstances may it be said that any part of an employee's duties closely affect interstate commerce.

In each of the three cases above discussed the employee was not only subject to assignment to interstate duties, but had previously been engaged in interstate duties in the very employment and presumably would soon be engaged in interstate duties again. In the case before us, under the practice adopted by SP, Gileo from the moment he entered the carshop on February 12, 1951 and was assigned to new car construction until the time of his injury 6 months later was employed exclusively in new car construction. He could have been assigned to repair work but in practice he was not, and would not be, so long as the new car construction continued and the materials for new car construction were available. The bare possibility of future assignment to repair work standing alone, does not seem to us sufficient to make ‘any part of his duties' affect interstate commerce within the meaning of the FELA. The test must be a practical, not a purely theoretical one. No case has gone so far as to hold that an employee whose immediate work over a long period of time has been exclusively in intrastate commerce, and no part of whose work in the past in that particular employment has been in interstate commerce, is covered by the FELA because of the possibility only that he might have been assigned to interstate employment at any time. We are satisfied under the facts of this particular case that respondent was not covered by the FELA.

Judgment reversed.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.

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