Albright v. Pennsylvania R.

GRASON, J., delivered the opinion of the court. The Pennsylvania Railroad, on the 24th day of January, 1943, and for some time prior thereto, maintained a produce terminal at the general location of North and Mount Royal Avenues, in the City of Baltimore. This yard comprises “about ten delivery tracks and about five ⁴²⁴ running tracks”. To the side of the tracks is a long two-story shed.

The second story is used for offices; the first floor (which is closed at night by drop doors) consists of platforms, where sample goods are displayed. This terminal is maintained chiefly for Baltimore brokers who deal, generally, in perishable goods (such as fruits and vegetables), which is shipped from points out of this State and delivered, to them at this terminal. Some of the brokers rent platforms in this shed. Upon delivery of a car of produce the seal is broken, samples taken from the car, and displayed on these platforms.

These brokers sell the goods shipped to them at the terminal and when sold the purchaser unloads the car. Other brokers' do not rent platforms but break the seal and exhibit the products in the car direct to prospective purchasers, and when they sell, these cars too are unloaded by the purchasers. The terminal is open “from midnight until 3 P. M. the next day”. No cars are unloaded on Sundays, except as hereinafter noted.

Most of the freight received ' at the terminal is sold in Baltimore. If, however, the Baltimore market is inactive, some of this freight is reconsigned to points outside of Maryland. Most of the shipments received at this terminal, however, is sold in Baltimore and but a small portion of the freight is reconsigned. The freight destined for the terminal is received at the Mount Vernon yards, on the main line of the railroad; the cars are put on a siding, and from there delivered by switch engines to the terminal. “As soon as cars are placed, consignees are notified, either person to person or by telephone.” They are given forty-eight hours after seven A. M. of the day of their notification by the railroad of the arrival of a shipment within which to move the freight from.the car.

On the night of January 23, 1943, there were one hundred and eight cars (loaded and empty) on the tracks at the produce terminal. Most of the goods shipped in these cars were for delivery in Baltimore. On the night of January 24, 1943, Clayton L. Albright sustained an injury at this produce terminal, of which he died on the 4th day of February, 1943. He was employed by the rail ⁴²⁵ road as a special policeman and assigned for duty at this terminal.

His hours were from 4 P. M. until 12 midnight. He was required to examine cars in the yard and those arriving while on duty, to determine whether seals on these cars were broken. If he found a seal broken he would apply another seal to the car, in order to safeguard the lading, and it was his duty to see that no theft was committed from the cars. Edna Albright, widow of the deceased, filed a claim for compensation before the State Industrial Accident Commission, and, after a hearing, the Commission awarded her compensation.

From this finding of the Commission the Railroad Company appealed to the Court of Common Pleas of Baltimore City. The case was tried, submitted to the jury, and the jury, by its verdict, sustained the Commission. Thereafter the railroad filed a motion for a judgment N. O. V., which motion was granted, thereby reversing the decision of the State Industrial Accident Commission of Maryland and from a judgment made absolute in favor of the employer and self-insurer, the claimant appealed to this Court. At the trial of the case below there was but one issue submitted to the jury for determination, namely: “Was Clayton L. Albright, deceased, engaged in interstate commerce at the time he sustained the injury which caused his death?” This involves the inquiry of whether the claimant’s action, if any, was cognizable under the Federal Employers’ Liability Act, 45 U. S. C. A., Sec. 51 et seq., or under the Workmen’s Compensation Law of this State, Code 1939, Art. 101, Sec. 1 et seq.

Prior to 1939, if one was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it, in the event of an accident to him while so engaged, his case came within the purview of the Federal Act. “The Federal act speaks of interstate commerce in a practical sense suited to the occasion, and the ‘true test of employment in such commerce in the sense intended is, Was the employee at the time of the injury engaged in ⁴²⁶ interstate transportation, or in work so closely related to it as to be practically a part of it?’ ” Chicago, B. & Q. R. Co. v. Harrington, 241, U.S. 177, 36 S.Ct. 517, 518 , 60 L.Ed. 941 ; Chicago & Eastern Illinois R. Co. v. Industrial Commission of Illinois, 284 U. S. 296, 298 , 52 S. Ct. 151 , 76 L.Ed. 304, 306 , 77 A.L.R. 1367 . “The Harrington case furnishes the correct rule.” Boyer v. Pennsylvania R. Co., 162 Md. 328, 337 , 159 A. 909, 913 . On August 11, 1939, Congress enacted the following amendment to the Federal Employers’ Liability Act: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” 53 U.S.Stat. 1404, 45 U.S.C.A. Sec. 51 . By this Act the Congress broadened considerably the Federal Employers’ Liability law. Before its passage the employee of the carrier was required to be engaged in duties involving actual transportation, or his work must have been so closely related to it as to be practically a part of it.

The cases are voluminous involving the question of whether certain work performed by an employee was “practically a part of transportation”. The result was that employees of carriers did not know whether they were engaged in interstate or intrastate transportation, although the great majority of traffic moving over the railroads of this country is in interstate commerce. Under this act it is provided that the benefits of the Federal Employers’ Liability Act shall apply to: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce.” “One of the purposes of the amendment of the Act as above indicated was to extend the provisions of the Federal Act to cover all employees of carriers whose work ‘shall, in ⁴²⁷ any way directly or closely and substantially, affect’ interstate commerce. The words used in the amendment are words often used by the Supreme Court of the United States in discussing interstate commerce and particularly in defining instrumentalities and things which may be technically in intrastate commerce but which are so related to interstate commerce that they are governed and regulated by acts of congress based upon its power to regulate interstate commerce.

It would appear from the reports of the congressional committees which considered the amendment that congress intentionally used these words with the purpose of expanding the application of the act.” Piggue v. Baldwin, 154 Kan. 708 , 121 P. 2d 183, 185 . “The discussions in Congress indicate that it was the intent of the lawmakers to bring within the scope of the Federal Employers’ Liability Act all employees whose work at the time of injury was not in actual interstate transportation or a part of it, but any part of whose work was in furtherance of interstate commerce, or in any way affected such commerce directly, closely and substantially.” Ermin v. Pennsylvania R. Co., 36 F.Supp. 936, 940 . From these authorities the test, since the 1939 Act, in determining whether the Federal act or the State law would apply, would seem to be whether at the time of the injury any part of the employee’s “duties as such” was in “furtherance of interstate or foreign commerce”, or did “in any way directly or closely and substantially affect such commerce”. If the employee’s “duties as such” was in “furtherance of interstate commerce”, or did “in any way directly or closely and substantially affect such commerce”, then the Federal act applies. “The weight of authority is to the effect that the amendment should be liberally construed so as to extend the protection of this act to all employees, any part of whose duties furthers or affects interstate commerce ‘in any way.’ ” Agostino v. Pennsylvania R. Co., D.C., 50 F. Supp. 726, 729 . ⁴²⁸ “Congress intended the statute to be as comprehensive in those instances in which it excludes liability as of those in which liability is imposed.” Roberts Federal Liabilities of Carriers, Vol. 2, Second Edition, page 1535. In Ermin v. Pennsylvania R. Co., supra, it was said: “The Court should not by a strained construction override the intent of the Congress but should rather decide questions in accordance with the views expressed by the Congress.

Here the Congress was trying to remedy a fault, it was enacting legislation which would not require a railroad employee to draw a hairline to determine whether or not at the moment of the accident he was actually engaged in interstate commerce. The Congress was correcting an evil which existed which prevented railroad employees from receiving a just determination of their rights.” In Elder v. Pennsylvania R. Co., 118 Pa.Super. 137 , 180 A. 183 , page 187, decided July 18, 1935, the Court said: “In any event the judgment cannot be sustained because the burden of proof was here on claimant to show that her decedent was, at the time, exclusively engaged in intrastate transportation. Viewing the evidence in a light most favorable to the claimant, there was no evidence that he was engaged in intrastate transportation. This principle was settled by the decision in Philadelphia & R. Ry.

Co. v. Polk, 256 U.S. 332 , 41 S.Ct. 518 , 65 L.Ed. 958 , which reversed the Supreme Court of Pennsylvania ( 266 Pa. 335 , 109 A. 627 ). In the Polk case, the deceased employee was engaged as one of a crew handling both interstate and intrastate shipments. In reversing the state Supreme Court, it was there said ( 256 U.S. 332 , page 335, 41 S.Ct. 518, 519 , 65 L.Ed. 958 ): ‘It would seem indisputable, therefore, if there be an assertion of the claim or remedy growing out of an occurrance in which there are constituents of interstate commerce the burden of explanation and avoidance is on him who asserts the claim or remedy, not on the railway company to which it is directed.’ ” ⁴²⁹ In the case of Philadelphia & R. Ry. Co. v. Polk, supra [ 256 U.S. 332 , 41 S.Ct. 519 , 65 L.Ed. 958 ], Mr. Justice McKenna said: “We cannot accede to the view that there is a presumption that duties performed on a train constituted of interstate and intrastate commerce were performed in the latter commerce.

The presumption, indeed, might be the other way. It is to be remembered that it is the declaration of the cases that if there is an element of interstate commerce in a traffic or employment (italics supplied) it determines the remedy of the employee.” And that opinion is concluded by the following: “It would seem indisputable, therefore, if there be an assertion of the claim or remedy growing out of an occurrence in which there are constituents of interstate commerce the burden of explanation and avoidance is on him who asserts the claim or remedy, nob on the railway company to which it is directed (italics supplied), and there is nothing in Osborne v. Gray, 241 U.S. 16 , in opposition. The Polk case was decided by the Supreme Court of the United States on May 16, 1921. Judge Adkins, speaking for this Court in the case of Pennsylvania R. Co. v. Stallings, 165 Md. 615 , at page 618, 170 A. 163 , at page 164, quotes from Schneider’s Workmen’s Compensation Law, 2nd Ed., Vol. 2, Sec. 537: “The burden of proving that the claimant was engaged in interstate commerce at the time of the accident rests upon the employer, when he seeks to defeat a claim for compensation on this ground.” Mr. Schneider published his book in 1922.

The authorities he cites to support the text are all decisions of State Courts. Among them is the opinion of the Pennsylvania Court in Polk v. P. & R. Ry. Co., which was reversed by the Supreme Court of the United States. Roberts Federal Liability of Carriers, 2nd Ed., Vol. 2, Sec. 1018, states the correct rule: “Where, however, an employee of a common carrier by railroad prosecutes an action for personal injuries and predicates a right of recovery upon the laws of a state ⁴³⁰ or the common law, and the defendant seeks to prevent a recovery under the state law by showing