Delaware, L. & W. R. Co. v. Scales

HOUGH, Circuit Judge

(after stating the facts as above). A point arises, not argued at bar, but raised by the motion to dismiss, and which, being of jurisdiction, this court is bound to consider sua sponte. It is whether this action can be sustained under ■the federal Employers’ Liability Act?

An examination of the complaint shows that, whatever may be the fate of another and different action, this one must rest on the statute; it claims no other support. And an examination of the statute and its history most conclusively shows that it covers and can cover only persons who at the time of alleged action arising were engaged in interstate commerce. Naturally, therefore, much of the litigation arising under the statute has been around the question: Was the plaintiff, engaged in interstate commerce at the necessary time and place?

This inevitable and vital question the Supreme Court has never endeavored to answer in general terms; it has here, as in so many other instances, pursued its well-known line of judicial inclusion and exclusion of particular eases. Each case is made to stand on its own bottom, by asking the question whether, at the time of injury, the employee was engaged in work so closely connected with interstate transportation as practically to be part of it? If the answer in any particular set of facts is “Yes,” then the act covers that employee’s case. Southern, etc., Co. v. Industrial, 251 U. S. 259 , 40 S. Ct. 130 , 64 L. Ed. 258 , 10 A. L. R. 1181; Erie Railroad v. Collins, 253 U. S. 77 , 40 S. Ct. 450 , 64 L. Ed. 790 , affirming (C. C. A.) 259 E. 172.

This method of ascertaining jurisdiction renders particular cases, of rather small value, for almost no set of circumstances is exactly like the next phenomenon. Yet comparisons cannot be avoided. Thus one shoveling snow between platform and track, at a station where interstate traffic is passing, is within the statute (New York Central v. Porter, 249 U. S. 168 , 39 S. Ct. 188 , 63 L. Ed. 536 ), and so is a watchman on a pier used solely for interstate commerce (D., L. & W. v. Busse [C. C. A.] 263 F. 516 ); also the cook on a camp car, which was reqtiired to furnish workmen bed and board while working on an interstate railway (Philadelphia, etc., Co. v. Smith, 250 U. S. 101 , 39 S. Ct. 396 , 63 L. Ed. 869 ). And see, further, Reap v. Hines (C. C. A.) 273 F. 88 .

On the other hand, a machinist’s helper, though working on engines employed in interstate traffic, is not within the statute (Minneapolis, etc., Co. v. Winters, 242 U. S. 353 , 37 S. Ct. 170 , 61 L. Ed. 358 , Ann. Cas. 1918B, 54); nor is a night watchman, who guarded tools, etc., used in the ereetion of a building useful for expected interstate business (New York Central v. White, 243 U. S. 188 , 37 S. Ct. 247 , 61 L. Ed. 667 , L. R. A. 1917D, 1, Ann. Cas. 1917D, 629); nor was one who cleaned stencils for marking interstate cars *75 (Illinois, etc., Co. v. Rogers [C. C. A.] 221 P. 52 ). It may be observed that, if tbe occupation be one that responds favorably to the crucial question above noted, the employee is regarded as so employed eundo, morando, et redeundo, vsdthin fairly wide bounds of reason. Erie R. R. v. Winfield, 244 U. S. 170 , 37 S. Ct. 556 , 61 L. Ed. 1057 , Ann. Cas. 1918B, 662; Dennison v. Payne (C. C. A.) 293 P. 333 .

Applying these decisions to the matter in hand, it may be inferred that, if Scales and Caffrey were engaged at Owego in work “so closely connected with interstate transportation as practically to be part of it,” they would still be therewith connected in going to and returning from that town; but the question remains: Is the business of being a policeman for a railway engaged in both kinds of commerce an (so to speak) interstate occupation ? And, further, did it make any difference that that which had been supposedly stolen at Owego was in transit from one state to another? The answers to these queries, so far as reported decisions go, are matters for reasoning and inference, and in our judgment that method leads to a rejection of the complaint.

We take notice of the fact that what are Called railway policemen are creatures of state law. There is nothing in federal statutes creating them, or giving them authority, allying them officially to interstate commerce. Their police function is to arrest, pursuant to state law, offenders against any lawful authority, state or national. Rut evidently they have nothing to do with transportation of any kind. A guard upon a car traveling between states would be in'a different position.

Nor did the fact that the goods missing disappeared while in interstate transit vary this truth. As policemen, all that called Scales and Caffrey into action was not transportation, but the cessation thereof. Nor did it make any difference that, assuming the goods were stolen as suspected, the theft was under existing statutes an offense against both state and national laws; for the duties and powers of the railway police were neither modified nor enlarged by the sanctions attached to the offense. In short, the occupation of Scales and Caffrey on the day in question would have been exactly what it was, had they been peace officers of the appropriate county or city, instead of policemen employed by a private corporation.

Judgment reversed, without costs, and case remanded, without prejudice to any further proceedings by amendment or new action, provided no reliance be placed upon the federal Employers’ Liability Act (Comp. St. §§ 8657-8665).