
    Moore v. Industrial Commission of Ohio.
    
      (Decided October 20, 1934.)
    
      Messrs. Mouser, Young, Mouser & Wiant, for plaintiff in error.
    
      Mr. John W-. Bricker, attorney general, and Mr. Russell M. Wilhelm, for defendant in error.
   Guernsey, J.

Plaintiff in error, Howard E. Moore, was plaintiff in the trial court, and the Industrial Commission was defendant, and they will be referred to in this opinion in the same relation in which they appeared in that court.

Plaintiff, as an employee of the Railway Service Company of Marion, Ohio, filed a claim for compensation with the Industrial Commission of Ohio. The commission found that at the time of the injury claimant was working on a locomotive which was in the course of interstate commerce, and disallowed the claim on that ground. Plaintiff then filed his appeal in the Court of Common Pleas of Marion county, Ohio. To the petition of the plaintiff in the Common Pleas Court the defendant filed an amended answer by way of general denial, with an additional defense based on the theory that the plaintiff at the time of his injury was as a matter of ■ law an employee of the Erie Railroad Company, and that he had brought suit against said company for his injury, which suit had been settled, and that he was thereby estopped from making claim against defendant. To this amended answer plaintiff filed a reply amounting to a general denial. On hearing of the appeal case a jury was waived, and the matter was submitted to the court. In its opinion the court found that the engine upon which, plaintiff was working at the time of his injury was engaged in interstate commerce, and for that reason, and for the further reason that Railway Service Company had not complied with Section 1465-98, General Code, found against plaintiff, and judgment in favor of defendant was entered on this finding. This proceeding in error is brought to reverse said judgment.

The evidence in this case shows that in March, 1927, there was in existence between the Railway Service Company and the Erie Railroad Company a contract in writing, a copy of which was offered in evidence, by the terms of which the Erie Railroad Company leased to the Railway Service Company its roundhouse and shop buildings, ash pits and handling machinery, stationary boilers and engines, wiring, transmission, tracks and all equipment and tools and other facilities used theretofore at Marion, Ohio, for the construction, repair and rebuilding of rolling stock of the railroad company, and employed the Railway Service Company to do the work for it both on and off the leased premises at rates of compensation therein provided. Said contract further provided that the Railway Service Company should furnish the necessary supervision, clerks, craftsmen, mechanics, labor, skilled and unskilled, and that it undertook to prosecute the doing of any and all such work required by the railroad company whether in the leased premises or elsewhere.

There was no provision in the contract whereby the railroad company retained the right to direct and control the mode or manner of doing the work. Except that the contract is between different contracting parties and the work to be done under it is the repairing of rolling stock instead of the maintenance of right of way, the contract is apparently in the same form as the contract involved in the case of Klar v. Erie Rd. Co., 118 Ohio St., 612, 162 N. E., 793, and in the case of Erie Rd. Co v. Margue, 23 F. (2d), 664.

The evidence further shows that Railway Service Company was a contributor to the State Insurance Fund, and was in good standing in March, 1927; that plaintiff was an employee of Railway Service Company on March 1, 1927, the date of the injury complained of; that about nine o ’clock in the morning of March 1, 1927, Erie engine No. 4025 was called out to take a freight train east for Erie Railroad Company; that while said train was still on make-up or storage track No. 4, in yard D of Erie Railroad Company at Marion, Ohio, said engine No. 4025 had a serious breakdown, requiring major repairs before it could again be put in service; that track No. 4 was a storage or make-up track in the Erie yards and was not a part of the main line of Erie Railroad Company; that said track No. 4 had a switch at both ends and was what is known as being open at both ends; that after the breakdown of engine No. 4025 the freight train was detached from engine No. 4025, was removed from track No. 4, was connected with engine No. 4028, and proceeded on its way about 10 a. m. on March 1, 1927; that the train to which said engine No. 4025 had been attached was a train' assigned to interstate commerce; that at the time of the breakdown of engine No. 4025 Amby W. Cook, road foreman of engines for Erie Railroad Company, called Railway Service Company for repairmen for said engine; that in answer to said call Railway Service Company sent Howard E. Moore, plaintiff, and three other employees to work on said engine; that the work by plaintiff on said engine No. 4025 was of the same character as the work performed by him for Railway Service Company at the round-house leased by said Railway Service Company; that the work consisted of dismantling said engine to facilitate its removal from said track No. 4 to the round-house for repairs, and to clear said track so as to permit its use for the making up of trains engaged in intrastate and interstate commerce. The undisputed evidence in this case shows that Amby W. Cook, road foreman of engines for Erie Railroad Company, took charge of said engine No. 4025 shortly after said breakdown and supervised the work done thereon by plaintiff and the three other employees of Railway Service Company.

Plaintiff arrived at said engine No. 4025 about 11 o ’clock a. m. on March 1, 1927, and was injured shortly thereafter by being crushed between the cross head and the guide yoke of said engine while he was working on the repairs to said engine. The repairs to the engine were of such character as to require at least thirty days for completion, and the condition of the engine was such after said breakdown that it could not be assigned to hauling duty during the period of repairs.

The evidence further shows that plaintiff filed suit against the Erie Railroad Company for his injury, and settlement of said suit was made.

It is contended by the plaintiff, Moore, that he was an employee of Railway Service Company, and was not engaged in interstate commerce, and did not come within the, definition of an employee engaged in intrastate commerce, and also interstate and foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States within the meaning of Section 1465-98 of the General Code of Ohio, and that consequently he is entitled to participate in the Workmen’s Compensation Fund.

Whether the plaintiff was engaged in interstate commerce at the time of his injury is to be determined by the following rules:

1. The test of employment in interstate commerce, which determines the application of the Federal Employers’ Liability Act, is whether the employee at the time of the injury was engaged in interstate transportation, or in any work so closely related to it as to be practically a part of it.

2. The tracks, bridges, roadbed, and equipment of a carrier in actual use in interstate commerce have a definite interstate character as instruments of such commerce, and give such character to those employed on them.

3. Equipment withdrawn from interstate commerce for repair does not give an interstate character to the work of repairing it, if the repair is a definite withdrawal from service and placement in new relations and not merely a temporary interruption of such service. Industrial Accident Commission of the State of California v. Davis, Agent, 259 U. S., 182, 42 S. Ct., 489, 66 L. Ed., 888.

4. An employee is within the Federal Employers’ Liability Act if the employment in which he is engaged at the time of his injury js an incident to interstate commerce, even though it may be likewise an incident to intrastate commerce. Erie Rd. Co. v. Winfield, 244 U. S., 170, 37 S. Ct., 556, 61 L. Ed., 1057.

5. An employee engaged in clearing tracks on right of way Of a railroad company to facilitate the movement of interstate commerce is engaged in interstate commerce. Freeman v. Frasher, Admx., 84 Colo., 67, 268 P., 538; Bamberger Electric Rd. Co. v. Winslow, 45 F. (2d), 499.

6. As the power of Congress is restricted to the regulation of interstate commerce, the question whether the Federal Employers’ Liability Act which regulates the liability of carriers engaged in such commerce is applicable, is a federal question, and the decisions of the Federal Courts are controlling. Kusturin v. Chicago & Alton Rd. Co., 287 Ill., 306, 122 N. E., 512.

In the case at bar the engine upon which plaintiff was working when injured remained in the same position it had been in when the breakdown occurred, and while the breakdown required the withdrawal of the engine from service for repair the withdrawal had not been accomplished and there was no placement in new relations, and consequently the engine which had been assigned to interstate commerce had not been withrawn therefrom at the time of plaintiff’s injuries within the rule laid down in Industrial Accident Commission of the State of California v. Davis, Agent, supra. Furthermore, the work done by plaintiff on the engine was primarily for the purpose of dismantling the engine so it could be removed from the make-up track, which was used for the making up of trains engaged in both intrastate and interstate commerce ; and, secondarily, for the removal of the engine to the roundhouse for repairs. The work being done was necessary to facilitate both the movement of intrastate and interstate commerce and comes within the rules mentioned in the cases of Erie Rd. Co. v. Winfield; Freeman v. Frasher; Kusturin v. Chicago & Alton Rd. Co., and Bamberger Electric Rd. Co. v. Winslow, supra. The plaintiff therefore was engaged in interstate commerce at the time of his injury.

It is contended, however, that as plaintiff at the time of his injury was an employee of the Railway Service Company, an Ohio corporation which was not incorporated and organized as a common cárrier, he did not come within the definition of an employee engaged in intrastate, and also interstate and foreign commerce, for whom the rule of liability has been established by the Employers’ Liability Act.

It was held in the case of Erie Rd. Co. v. Margue, supra, that a contract by which a railroad company employed a construction company, along with its own employees, to maintain its tracks, roadway and structures, which contract required the construction company to comply with the Workmen’s Compensation Law, the cost to be paid by the railroad company, was ineffective to relieve the railroad company from the operation of the Federal Employers’ Liability Act with respect to injuries to workmen doing work, the duty of performing which rested upon it.

The contract between the Railway Service Company and the Erie Railroad Company in the case at bar is similar in form to the contract involved in the case of Erie Rd. Co. v. Margue, supra, except that the contract in the case at bar relates to the repair and upkeep of rolling stock of the railroad company whereas the contract in the case of Erie Rd. Co. v. Margue relates to the maintenance of tracks, roadway and structures. The duty of a railroad company to keep its rolling stock in repair is just as mandatory as its duty to maintain its right of way, and, following the reasoning in the opinion in the case of Erie Rd. Co. v. Margue, the contrast in the case at bar comes within the purview of Section 5 of the Employer’s Liability Act and is void to the extent that its purpose or intent is to enable the common carrier to exempt itself from any liability created by the Federal Employers’ Liability Act. Consequently the plaintiff came within the meaning of the Federal Employers’ Liability Act, as construed by the Circuit Court of Appeals in its decision in the case of Erie Rd. Co. v. Margue, supra, which decision under the rule announced in the case of Kusturin v. Chicago & Alton Rd. Co., supra, is controlling upon the court, plaintiff at the time of his injury being an employee of the carrier by rail, the Erie Railroad Company, engaged in interstate commerce.

The construction placed by the federal courts on contracts similar to the one involved in the case at bar is controlling on this court in construing the provisions of Section 1465-98, General Code, and as under such construction the plaintiff comes within the classification of an employee engaged in intrastate and also in interstate and foreign commerce, for whom a rule of liability has been established by the Congress of the United States, he is precluded from recovery under the Workmen’s Compensation Act by reason of his failure to file a written acceptance and otherwise comply with the provisions of said section.

It is contended by the plaintiff, however, that this ease comes within the decision of Klar v. Erie Rd. Co., supra, decided May 23, 1928, subsequent to the decision of Erie Rd. Co. v. Margue, which was decided January 6th of that year.

In the Klar case a contract similar to the one in the case at bar was involved, but in that case, which was an action for damages for personal injuries under the Federal Employers’ Liability Act, the court held that the plaintiff was not engaged in interstate commerce at the time of his injury and consequently did not come within the purview of the Federal Employers’ Liability Act. The decision of this question disposed of the case. However, in the opinion in the ease it is indicated that the Youngstown Equipment Company, which was under contract with the railroad company, and which was the employer of the plaintiff at the time of the injury, was not a company “for whom a rule of liability or method of compensation has been or may be established by the congress of the United States,” because such act applies only to common carriers by rail. From the opinion it appears that the decision in the case of Erie Rd. Co. v. Margue, supra, was not called to the attention of the court or considered by it. This proposition is not covered by the syllabus, which establishes the law of the case, and as the opinion on this point was obiter, and the Margue co/se was not considered, we do pot feel that we are constrained to follow that opinion in the case at bar.

But leaving out of consideration the application of the decision in the Margue case, there are facts in the case at bar which constituted plaintiff an employee of the Erie Railroad Company at the time of his injury, notwithstanding his general employment by Railway Service Company, which brings him within the protection of the Federal Employers’ Liability Act and consequently within the purview of Section 1465-98, General Code.

Although the railroad company in its contract with the Railway Service Company did not reserve supervision over the employees of Railway Service Company, it did, in the instant case, as shown by the undisputed evidence, exercise supervision over the plaintiff through its road foreman of engines at the time of plaintiff’s injury, and by* reason of which fact he in law became a loaned employee to the railroad company.

In the case of Shepard v. Jacobs, 204 Mass., 110, 112, 90 N. E., 392, 134 Am. St. Rep., 648, 26 L. R. A. (N. S.), 442, it is said:

“In determining whether, in a particular act, he is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in business of which the person is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result.”

In the case of Coughlan v. City of Cambridge, 166 Mass., 268, 277, 44 N. E., 218, it is said:

“The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of tbe party to •whom he is lent or hired.”

And the same rule is also set forth in the case of Puhlman v. Excelsior Express and Standard Cab Co., 259 Pa., 393, 103 A., 218, L. R. A., 1918E, 118, in the following words:

“Where one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him. The test is whether,- in the particular service which he is engaged to perform, he continues subject to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.”

This rule has been followed and applied in the following workmen’s compensation cases: Scribner’s Case, 231 Mass., 132, 120 N. E., 350; Tarr v. Hecla Coal & Coke Co., 265 Pa., 519, 109 A., 224.

It has also been held and applied to fix the liability of carriers under the Federal Employers’ Liability Act in the cases of Linstead, Exrx., v. Chesapeake & Ohio Ry. Co., 276 U. S., 28, 48 S. Ct., 241, 72 L. Ed., 453; Central of Georgia Ry. Co. v. Garner, 219 Ala., 441, 122 So., 429.

The plaintiff, being a loaned employee to the railroad company at the time of his injury, was not at the time of his injury an employee of Railway Service Company within the meaning of the Workmen’s Compensation Act, and consequently he is not entitled to recover under the provisions of said act.

Holding these views, the judgment of the trial court will be affirmed.

Judgment affirmed.

Klinger, J., concurs.

Crow, P. J.,

dissenting. That plaintiff was an employee of the Railway Service Company, that he was injured while in the performance of his duties as such employee, pursuant to the written contract between the Erie Railroad Company and the Railway Service Company, and that such injury was compensable, were conclusively proved in the court below. It was also conclusively proved that Railway Service Company had paid the proper premium to the Industrial Commission. It was also conclusively proved that Railway Service Company was not a common carrier, its activities, under the said written contract with the Erie Railroad Company, which was a common carrier, going no farther than to repair rolling stock of said common carrier.

Whether plaintiff was at the time of his injury working on an instrumentality of interstate or intrastate commerce was of no consequence, because Railway Service Company, his employer, was not a common carrier. Klar v. Erie Rd. Co., 118 Ohio St., 612, 162 N. E., 793.

Consequently judgment in the trial court should have been for plaintiff, and the judgment here should, be a reversal of that judgment.  