LOS ANGELES CO v. INDUSTRIAL ACCIDENT COMMISSION (1934)

Review of an award of respondent commission in favor of respondent Peeples, an employee of the petitioner. There is no controversy here concerning the fact that respondent was injured by reason of an accident which arose out of his employment and occurred in the course thereof. The principal question presented rises out of petitioner's contention that the commission has no jurisdiction to allow the claim; that the injured man was engaged in interstate commerce at the time of the injury, and therefore the compensation could only be awarded under the Federal Employers' Liability Act (45 USCA §§ 51-59). Hines v. Ind. Acc. Com., 184 Cal. 1, 192 P. 859, 14 A. L. R. 720. The commission in its decision and award found that at the time of the injury said employee was not engaged in interstate commerce, and that both employer and employee were subject to the provisions of the Workmen's Compensation Insurance and Safety Act of 1917 (St. 1917, p. 831, as amended). If this finding is not sustained by the evidence, the commission was without jurisdiction to make the award.

It appears from the record that respondent Peeples, on or about December 15, 1930, near Elgin, Nev., was engaged in stringing a line of cable from a block signal, so as to connect it with a power line which was being carried on new poles recently set up; the new poles forming a detour in an existing pole line. The detour was installed in order to give a free working space around the entrance to a tunnel, in connection with the widening of the tunnel. The cable had been laid on the ground in a straight line, and it was thereafter determined to move it up hill a short distance, so as to give more room around the mouth of the tunnel. While moving the cable on the ground, it caught in some brush, the brush snapped, a portion flew into respondent's eye, and caused a permanent injury thereto. The pole line ran from Los Angeles to Salt Lake City, and carried wires to operate signals along the main line of the railroad, as well as telegraph and telephone wires. While the changes were being made, the block signal was kept in constant operation through a temporary wire laid along the ground. The block signal and communication wires were necessary to the operation of petitioner's line of railroad between Los Angeles, Cal., and Salt Lake City, Utah. The line was being used in that business all the time while the described work was being done. With reference to the nature of the employment, petitioner here has directed attention to the facts, shown by the record, that the employee with others was engaged in moving the signal line controlling the block signals on petitioner's main line carrying interstate traffic, in order to allow room for tunnel construction. “The process of removal was to set up four or five new poles in the altered location, to string wire on those poles, connect this wire to the wire already in use, then to remove the intervening wire and poles. On the day of the accident the work had progressed to such point that the new poles were in position and it merely remained to stretch the wires thereon and connect them up. At the time of his injury, applicant was pulling the wire into position to be placed on the poles, when the wire traversed a piece of brush which snapped and flew into his eye.”

Both in the federal courts and in state courts there have been numerous decisions attempting to state the rules by which the scope of the Federal Employers' Liability Act may be determined in its application to disputes about the nature of the work being done by injured employees, and particularly as to whether or not at the time of the injury the employee was engaged in interstate commerce. In Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 S. Ct. 648, 649, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, the plaintiff was injured while working in the employ of a railroad company engaged in both interstate and intrastate commerce. He was injured while carrying from a tool car to a bridge some bolts and rivets which were to be used in repairing the bridge, the repairing to consist in taking out an existing girder and inserting a new one. The bridge was regularly being used in both interstate and intrastate commerce. This bridge could be reached only by passing over an intervening temporary bridge, which likewise was being used in such commerce. While the plaintiff was carrying a sack of bolts or rivets over the temporary bridge on his way to the permanent bridge, he was run down and injured by an intrastate passenger train, of the approach of which its engineer failed to give any warning.

In the action brought by Pedersen to obtain compensation for his injuries, the proceedings led to an appeal which was decided by the Supreme Court of the United States in favor of the plaintiff. In the course of its decision the court made a very clear statement of what seems to be settled law on the subject now under consideration. The Supreme Court said: “That the defendant was engaged in interstate commerce is conceded; and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment’ used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it.”

In the case at bar we may paraphrase a part of the foregoing quotation and say that in modern railway transportation block signals, or some equivalent therefor, are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. The work in which the employee Peeples was engaged at the time of the injury was so closely related to the existing interstate transportation of the employer as to be practically a part of it.

By way of contrast, reference may be made to the case of Raymond v. Chicago, Milwaukee & St. Paul Ry. Co., 243 U. S. 43, 37 S. Ct. 268, 61 L. Ed. 583, where the plaintiff sought to recover damages resulting from injuries sustained by him as a laborer in a tunnel. It was stated that the defendant operated an interstate commerce railroad between Chicago and Seattle, and that, for the purpose of shortening its main line and making more efficient and expeditious its freight and passenger service, the defendant was engaged in cutting a tunnel through a mountain. The tunnel was only partially bored, and hence was not in use as an instrumentality of interstate commerce. The Supreme Court held that upon the facts stated plaintiff and defendant were not engaged in interstate commerce at the time the injury was suffered, and consequently no cause of action was alleged under the Federal Employers' Liability Act. But in the case at bar it is an undisputed fact that, while the tunnel was being widened, it continued, as theretofore it had been, in operation as an instrumentality of interstate traffic, and that the changing of the block signal was merely an incident in the performance of the railroad company's duty to keep the line in operation while the improvement of the tunnel was going on.

Since we are of the opinion, for the reasons above stated, that respondent commission was without jurisdiction over the subject-matter of the proceeding, it is not necessary to state or discuss the other grounds upon which petitioner contends that the commission was without jurisdiction.

The award is annulled.

I dissent.

The only fault I have with the statement of facts in the main opinion is that it does not appear therefrom that the wire upon which the injured employee was working at the time of his injury was not, and never had been, used in interstate commerce. At the time of the injury, the signals were being operated by a wire, which is referred to in the main opinion as being a wire lying upon the ground, and this wire was not connected in any way with the wire which the injured employee was attempting to stretch into place. Said ground wire was not even lying in the same direction as the wire which the injured employee was engaged in attempting to place in position, and there is no evidence that this wire upon which the injured employee was working was ever used in connection with the operation of the block signal.

To my mind, the most convincing argument against the foregoing opinion of this court is found in the case of Texas & P. Ry. Co. v. Kelly (Tex. Com. App. 1932) 51 S.W.(2d) 299, at page 303, where it is said: “The testimony shows that the railroad company had installed for its use at the crossing certain devices which were operated by the trainmen to permit the trains to cross the intersecting tracks. * * * It is undisputed that at the time of the injury to Kelly the system was not complete. The wires which were necessary for the operation of the new system had not been connected. It had never been used as an instrumentality of interstate transportation prior to the time of Kelly's injury. The system was completed and put in operation about two weeks after Kelly was injured. It is undisputed that the interlocking system would not be used in any way for the operation of trains until the wires were connected and it was complete. If Kelly had been at work on the track, which was being used by trains in the transportation of interstate commerce, or if he had been at work upon a bridge likewise used in interstate transportation, or if he had been working upon the levers and parts of the device used by the railroad company in the operation of its tracks, he would come within the provisions of the Federal Employers' Liability Act. In other words, as we construe the opinions of the Supreme Court of the United States, it is held that the Federal Employers' Liability Act protects only those employed in interstate transportation. Those employed to work upon roadbeds, rails, ties, cars, engines, and other instrumentalities, which are intended for use in interstate transportation, but which have never been and are not in use therein, are not protected by that act. A distinction has been drawn between construction work and repair work, and it is held that an employee engaged in repairs on an appliance which is an integral part of interstate transportation is within the provisions of the act, but if the employee is employed at the time of his injury in the making of new appliances to be used in the future, is not so engaged and will not be protected by the act. In view of the foregoing authorities and the undisputed facts involved in this case, we are constrained to hold that Kelly was not protected by the provisions of the Federal Employers' Liability Act and therefore not entitled to recover by reason of this suit.” (A petition for writ of certiorari in the cited case addressed to the Supreme Court of the United States was by that court denied on October 17, 1932, 287 U. S. 644, 53 S. Ct. 90, 77 L. Ed. 557.)

In the case of Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, cited in the main opinion, the injured employee was injured when directly upon the line of railway which was being used in interstate commerce, although the train which hit him was an intrastate train.

CONREY, Presiding Justice.

I concur: HOUSER, J.