For the prosecutor, Wall, Haight, Carey & Hartpence (Charles J. Gormley, of counsel).
For the defendant, Joseph C. Paul.
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The Workmen's Compensation Bureau awarded to prosecutor's employee, McFadden, compensation for permanent total disability under R.S. 34:15-1, et seq.; and the Hudson Court of Common Pleas affirmed the judgment.
The employer maintains that the evidence does not sustain the finding of a compensable accident, and that, even though it does, there is no proof of a resultant permanent injury; and that, at all events, the parties were both engaged in interstate commerce and the judgment is therefore coram non judice.
The facts are in the main free from dispute. McFadden was employed to service tugboats operated by prosecutor in the New York harbor in both interstate and intrastate commerce. The place of his employment was a pier maintained by prosecutor on the Hudson River at Jersey City, New Jersey, designated as "Pier 'H.'" Here, railroad cars devoted to the transportation of freight in interstate and intrastate commerce were moved through the harbor on steel floats and barges propelled by tugs. These cars were thus conveyed to and from various points on the New York shore in Manhattan, The Bronx and Long Island, and also piers at Hoboken and Bayonne in New Jersey. Interstate commerce predominated. Some of these towboats were propelled by steam and the others by Diesel engines. It was McFadden's duty to pump oil into the docked Diesel-engined boats from storage tanks nearby, and to draw oil from barrels into small containers for the use of the steam tugs. These barrels each had a capacity of 50 gallons; and they were "rolled up on a skid -- high enough" to "put a five-gallon can below the tap and fill it." Cans were carried to the raised barrel by members of the crew, filled by McFadden on written order, and returned to the boat by the carrier. Oils for fuel, lubrication and lighting were thus supplied to the tugs. McFadden testified that on January 5th, 1940, while rolling a full barrel up the "skid," with the assistance of a co-employee, he "felt a catch like a stitch" just below the ribs on the left side. He "didn't think much of it at the time;" and he remained at his post. He worked the next day, Saturday, but on the following Monday he was physically unable to resume his labors. He has not worked since; and it is fairly inferable that a heart ailment has incapacitated him, at least for laborious work. The condition was diagnosed as "effort angina," with a basic coronary sclerosis.
We have no occasion to determine whether the claimant has sustained the burden of proof of an industrial accident. If there was such an accident, he was engaged in interstate commerce, and his rights and remedies are determined exclusively by the Federal Employers' Liability Act, approved April 22d, 1908, as amended on August 11th, 1939. 35 Stat. at L. 65, ch.
149; 53 Stat. at L. 1404, ch. 685; 45 U.S.C.A., §§ 51, et seq. Vide Erie Railroad Co. v. Winfield, 244 U.S. 170; 37 S. Ct. 556; 61 L. Ed. 1057.
Prior to the amendment of 1939, the test of employment in interstate commerce, within the intendment of the federal statute, was whether the employee, at the time of the injury, was engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Shanks v. Delaware, Lackawanna and Western Railroad Co., 239 U.S. 556; 36 S. Ct. 188; 60 L. Ed. 436; Chicago and Northwestern Railroad Co. v. Bolle, 284 U.S. 74; 52 S. Ct. 59; 76 L. Ed. 173. As to the latter category, the question was one of remoteness and degree. It was essential that the service be an "intimate and integral part" of interstate transportation. Kinzell v. Chicago, Milwaukee and St. Paul Railroad Co., 250 U.S. 130; 39 S. Ct. 412; 63 L. Ed. 893; Chicago and E.I. Railroad Co. v. Industrial Commission, 284 U.S. 296; 52 S. Ct. 151; 76 L. Ed. 304; Coviello v. New York Central Railroad Co., 126 N.J.L. 536. The amendment of 1939 incorporated in section 1 of the act the definitive provision that an employee of a common carrier in interstate commerce, "any part of whose duties as such employee ...