In a proceeding under a state workmen's compensation law to
recover for the death of a railroad employee, findings that, when
injured, he was employed as a member of a crew in charge of a draft
of freight cars attached to an engine in a yard and containing both
interstate and intrastate cars and freight establish his employment
in interstate commerce; a special relation to the intrastate
commerce which would have rendered his employment intrastate cannot
be presumed, but must be proven by the actor in the proceeding.
Philadelphia & Reading Ry. Co. v. Di Donato, ante,
256 U. S. 327. P.
256 U. S.
333.
266 Pa.St. 335 reversed.
The case is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Certiorari to review a judgment of the Supreme Court of the
State of Pennsylvania affirming an award made under the Workmen's
Compensation Board of the state in favor of respondent who is the
widow of John M. Polk, who died as the result of an accident,
occurring in the course of his employment by the railway
company.
The matter of her petition proceeded in due course from referee
of the Board to the Board, from the latter to the court of common
pleas, and thence to the supreme court of the state, she being
adjudged by all of them entitled
Page 256 U. S. 333
to an award under the Workmen's Compensation Act of the state
(Pa.St.1920, ยง 21916
et seq.).
The facts as found are that Polk, on August 28, 1917, while
employed by the railway company on a freight train in its Port
Richmond Yard handled by engine No. 832, was caught between two
cars, and as a result thereof sustained injuries from which he
died.
At the time of the occurrence of the injury, the company was a
common carrier by rail engaged in interstate and intrastate
commerce, and that, at such time, there was a draft of freight cars
attached to the engine which was in charge of the crew of which
Polk was a member. Some of these cars were bound from points within
the state to other points within the state, and the others were
loaded with various commodities, some of which were bound from
points outside of the state to points within the state, and others
of which were bound from points within the state to points outside
of the state, and there was at least one car of this draft which
was passing through the state from a point in New York to a point
in Illinois.
The Board, upon the appeal of the company, adopted the findings
of fact and conclusions of law of the referee, and affirmed his
award. This action was affirmed by the court of common pleas, and
the latter's judgment by the supreme court.
The referee did not find definitely as a fact that Polk was
engaged in intrastate commerce at the time of his injury, but
assumed that the fact might be so, therefore, regarded it as so
because, in his (the referee's) opinion, the burden of proving the
contrary -- that is, that Polk "was actually engaged in work
incident to interstate commerce" -- was upon the company, and the
company had "not met the burden required of it," and further, that
the company "offered no testimony whatever to show what work John
M. Polk was performing at the time he was injured. . . ."
The supreme court approved the findings and the
Page 256 U. S. 334
deductions from them. It is manifest, therefore, that the case
is within the rule of
Philadelphia & Reading Railway Co. v.
Di Donato, ante, 256 U. S. 327.
Here, as there, the employment concerned both kinds of commerce,
and was to be exercised as much on one as on the other. In other
words, was as much and as intimately directed to the interstate
cars and freight as to the intrastate cars and freight, and that
there might have been some duties directed to the latter though
there is no evidence of it, is the suggestion of a speculation that
has no tangible prompting in the case.
Besides, 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, it determines the remedy of the employee.
Second
Employers' Liability Cases, 223 U. S. 1;
New
York Central Railroad Co. v. Winfield, 244 U.
S. 147.
Northern Pacific Ry. Co. v. Washington, 222 U.
S. 370,
222 U. S. 375,
declares and illustrates the principle. Expressing the facts and
the law applicable to them, it was said:
"The train, although moving from one point to another in the
State of Washington, was hauling merchandise from points outside of
the state destined to points within the state and from points
within the state to points in British Columbia. . . . This
transportation was interstate commerce, and the train was an
interstate train, despite the fact that it may also have been
carrying some local freight. In view of the unity and
indivisibility of the service of the train crew and the paramount
character of the authority of Congress to regulate commerce, the
act of Congress was exclusively controlling."
Southern Ry. Co. v. United States, 222 U. S.
20.
Page 256 U. S. 335
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, not on the
railway company to which it is directed, and there is nothing in
Osborne v. Gray, 241 U. S. 16, in
opposition. Indeed, the Court was asked in that case to do what the
referee and the supreme court in this case have done -- that is, to
assume to know things of which there is no evidence.
Judgment reversed and cause remanded for further proceedings
not inconsistent with this opinion.
MR. JUSTICE CLARKE dissents.