SOUTHERN PAC CO v. INDUSTRIAL ACCIDENT COMMISSION ET AL (1941)

This is an application for a writ of review for the purpose of having annulled an award made September 27, 1940, by the Industrial Accident Commission. The first and third findings on which said award was based were as follows:

“1. Fred Wills, 62 years of age, while employed as a freight car builder on February 26, 1940, at Sacramento, California, by Southern Pacific Company, sustained injury occurring in the course of and arising out of his employment, as follows: Struck in right eye by piece of steel. At said time said employer was self–insured, and both employer and employee were subject to the provisions of the workmen's compensation, insurance and safety laws of the state of California, St.1937, p. 265 et seq., § 3201 et seq.

“3. The evidence does not indicate that the applicant was engaged in interstate commerce at the time of his injury.”

It is a companion case to Southern Pacific Company v. Industrial Accident Commission et al., 113 P.2d 763, Civil No. 11595, this day filed. The facts are somewhat different, but the legal principles involved are the same as those controlling in Civil No. 11595. The statement of facts as set forth by the petitioner is conceded to be substantially correct. We quote from the petition:

“1. Petitioner is a common carrier by railroad in interstate commerce in the respects hereinbefore more fully alleged. Its railroad system extends between San Francisco and Portland, Oregon; between San Francisco and Ogden, Utah, via Reno, Nevada; and between San Francisco and Yuma, Arizona, and points beyond Yuma; and includes also lines extending between Sacramento and Los Angeles, California. At Sacramento, petitioner has for many years maintained and now maintains a general repair shop, where cars owned or used by petitioner, and devoted to general freight service, in both interstate and intrastate commerce, were and are given all classes of repairs.

“2. At all times material to this cause, applicant was employed by petitioner at its said Sacramento general shop, in the capacity or classification of ‘car builder’. His duties in that employment consisted in making repairs to freight cars owned or used by petitioner in its general transportation business as aforesaid. The purpose of repairing freight cars is to permit their continued use by petitioner and its connections in their general business as common carriers of property by railroad, in both interstate and intrastate commerce.

“3. The applicant was, at the time and date of the accident, causing his injury (on February 26, 1940, as hereinafter described), engaged in making repairs to a freight car identified by initials and number as ‘S.P. 26949’. Said car had been used by petitioner during the period December 23, 1939, to January 3, 1940, for the transportation of a carload of box shook from Booth, Oregon, to Camarillo, California, and had been placed in the Sacramento general shop on February 12, 1940, for purposes of repair. It remained at said shop until repairs were completed, on March 4, 1940. Said car was thereafter moved empty to Hamilton, California, at which point it was, on March 11, 1940, loaded with a carload of sugar, and thereupon moved with said carload of sugar to Portland, Oregon, arriving at the latter point on March 14, 1940. One of the particular purposes of the repairs to said car, undertaken at the Sacramento shop as aforesaid during the period February 12 to March 4, 1940, was to render said car suitable for the transportation of sugar. Said car was empty, while undergoing said repairs.

“4. On February 26, 1940, while applicant was engaged, in the course of his said employment, in making repairs on said car (S.P. 26949) at said Sacramento shop, he struck an axe with a hammer, which caused a small piece of steel to be broken off; said piece of steel struck and entered applicant's right eye. Said injury resulted in loss of sight of said right eye. Applicant returned to work for petitioner in his usual occupation on May 20, 1940, after having received medical and surgical care and treatment, duly furnished by petitioner.

“5. (a) Applicant was actually engaged, at the moment of the injury hereinbefore described, in repairing an instrumentality of interstate commerce, towit: said freight car S.P. 26949, which instrumentality had previously been devoted, assigned to and used in interstate commerce, had not been withdrawn therefrom or abandoned, was being repaired for the purpose of continuing to engage in, and immediately after its repair did actually engage in, said interstate commerce.

“(b) A substantial and daily part of the duties of said applicant, on and continuously prior to the said accident to him, was the furtherance of interstate commerce by keeping the necessary instrumentalities of interstate commerce in usable condition; and his work and employment directly and closely and substantially affected interstate commerce.

“(c) At the time of said injury to applicant, both he and petitioner were engaged in interstate commerce and transportation, or in work so closely related thereto as to be in contemplation of law a part thereof.”

Both parties concede that, under the facts, prior to the enactment of the amendments, 53 U.S. Stat. 1404, 45 U.S.C.A. §§ 51, 54, 56, 60, the case would not have been controlled by the basic statute. 35 U.S. Stat. 65, 45 U.S.C.A. § 51 et seq. The sole question presented by the record is whether the case is controlled by the said amendatory statute. We think it is. It will be noted that there is no conflict in the evidence. Construing the statute as we did in Civil No. 11595, we think it is clear that of the duties of the decedent it must be said they were the furtherance of interstate commerce and in a way directly, closely and substantially to affect such commerce as set forth in the amendment to section 1 of 53 U.S. Stat. 1404, 45 U.S.C.A. § 51.

It follows the award should be and it is annulled.

STURTEVANT, Justice.

We concur: NOURSE, P. J.; SPENCE, J.