No question is raised here about the sufficiency of the evidence to support the findings of the State Industrial Accident Board, as to the facts of this case. We are therefore bound to accept the findings as a correct statement of the essential facts upon which the board made its order. (Bower v.Smith, 63 Idaho 128, 118 P.2d 737, and cases cited; Sec. 43-1413, I.C.A., as amended, '37 Sess. Laws, chap. 175, p. 290.) For that reason, I am incorporating herein the findings relative to the nature of the work at which respondent was engaged when the accident occurred; they are as follows:
"V. "That due to the increase in both interstate and intrastate transportation by rail, to facilitate the making up and switching of its trains, to relieve the congestion of traffic in the yard at Nampa, Canyon County, Idaho, and generally to increase the efficiency of its operations, the said defendant, during the month of April, 1941, caused plans to be prepared by its chief engineer for a rearrangement and extension of the said Nampa yard, providing for the installation of new tracks, switches and other facilities, the taking up or replacing, relocating and relaying of old tracks, switches and other facilities, and in general a plan of construction and reconstruction to enlarge said yard. That said project called for the excavating for and construction *Page 500 of approximately four miles of new tracks and thirty-two new switches, the building of a new large icing dock about 900 feet long, and the relocating of tracks and switches to make room for the new icing dock.
VI. "That pursuant to said plan, construction on said project was started May 27, 1941. From the commencement of construction to July 19, 1941, the part of the yard under construction and reconstruction, 'the new part,' was closed to traffic and was not kept in service, although connected by switches, with the portion of the yard which was kept in service. On said last mentioned date the new and reconstructed portion of the yard was opened by traffic, but the project was not finished until about August 23 of the same year.
VII. "That said work was performed by a so-called 'extra-gang,' a crew ordinarily called out on new construction or as extra help on maintenance and repair jobs too large for a section crew. At the times herein involved the said extra-gang consisted of about 65 men and was in charge of a foreman.
"While engaged on the Nampa yard project, from time to time, the defendant sent a few members of the extra-gang to work outside the project on branch lines within the State of Idaho, once to the McCall branch with a tie gang and three times to go on the Murphy branch; although claimant was not so employed outside the project until some time in August, 1941, after hisinjury, when he was sent on fire patrol to the McCall branch.
VIII. "That claimant was employed on said extra-gang as a laborer on said project from June 2, 1941, to June 16, 1941. That for the first four or five days he was assigned and performed work assisting in relocating tracks which were moved to make room for the new icing dock. Thereafter he was assigned and performed work in the constructing of a new yard track, about one mile in length, known under the project as Track No. 118, with the exception of a short time in the morning of June 16, when, at the direction of his foreman, he used his automobile to take the foreman and another boss to town. That claimant's work on such *Page 501 track consisted in helping to carry and lay ties and rails and align them, and to shovel and level gravel. That said gravel had been procured by defendant at its gravel pit atClaytonia, Idaho, brought by work train over its Homedale,Idaho, branch, via Nyssa, Oregon, to Nampa, Idaho, where the gravel cars were pushed and backed into the yard by a yard engine and dumped between the rails and on the track aforesaid.
IX. "That on July 16th, 1941, upon claimant's return from town as aforesaid, he commenced leveling and shoveling gravel from between the rails on Track No. 118, using a short-handled scoop-shovel, by means of which he was throwing the gravel, some ten feet to his right, into a barrow pit; that after so throwing some ten to fifteen shovelsful, while throwing another shovelful he twisted himself, and, as he swung back into position, his back weakened or 'something happened' to his back, resulting in a severe pain from which he collapsed and fell in a fainting condition between the tracks.
X. "That as a result of said injury claimant was totally disabled for work from the date of said accident, July 16, 1941, to October 1, 1942, except for a brief period of ten days in August 1941, when he was employed by defendant upon what turned out to be a mistaken assumption by both parties that he was then able to perform light work." (Italics inserted.)
It seems clear from the findings, that respondent at the time of his injury was engaged in work for the railroad company in the "furtherance of interstate or foreign commerce" and likewise and, at the same time, in furtherance of intrastatecommerce. It seems to me that the work at which respondent was engaged, as recited in the findings, did and does in a "way directly or closely and substantially affect" interstatecommerce. The purpose of the amendment of August 11, 1939, (45 U.S.C.A., sec. 51), in this respect, is very succinctly and tersely stated by the House Conference Committee in their reports to the House, after conference with the Senate conferees over differences that had arisen between the members of the two branches of Congress as to how the amendment should be worded. After *Page 502 stating to the House the result of the conference, the Committee explained the intention of the amendment as follows:
"The conferees agreed to a Senate provision, not contained in the House amendment, which is intended to broaden the scope of the Employers' Liability Act so as to include within its provisions employees of common carriers who, while ordinarily engaged in the transportation of interstate commerce, may be, at the time of injury, temporarily divorced therefrom and engaged in intrastate operations.
"The question whether an employee, at the time of his injury, is engaged in interstate or intrastate commerce is frequently difficult of determination. Under the rule laid down by the Supreme Court of the United States, an employee of a railroad company who may be injured must be found to have been engaged, at the time of the infliction of the injury, 'in transportation or work so closely related to it as to be practically a part of it' (Shanks v. D., L. W. R. R.)."
(76th Congress, First Sess., vol. 84, pt. 10, p. 11107.)
The cases decided under the 1939 amendment all hold the view, that the purpose of the amendment was to bring all workmen within the operation of the Federal Employers' Liability Act, whose work "in any way directly or closely and substantially" affects interstate commerce. The cases involving the amendment are collated in Agostino v. Pa. R. Co., 50 F. Supp. 726. Subsequent decisions not cited in the Agostino case are: Praderv. Pa. R. Co., 49 N.E.2d 387, 391; McFadden v. Pa. R. Co.,130 N.J.L. 601, 605, 34 Atl. (2d) 221, 223.
Here the employee's work was "in furtherance of interstate or foreign commerce" and "directly or closely and substantially" affects such commerce.
There is one recent case, however, that disturbs me somewhat. It is Davis v. Dept. of Labor, etc., of Washington,317 U.S. 249, 63 S. Ct. 225, 229, 87 L. ed. 175, (Petn. for rehearing denied, Jan. 11, 1943, 317 U.S. 713, 63 S. Ct. 438,87 L. ed. 405). While that case involves the consideration and application of the Federal Longshoremen's and Harbor Worker's Act, 33 U.S.C.A., sec. 901 et seq., its determination seems to have turned on the issue of jurisdiction — whether it is state or federal. So, the reasoning and logic of the *Page 503 opinion in that case seems as applicable here as it was there. In the majority opinion in that case, it is said:
"There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act."
Further on the writer (Mr. Justice Black) said:
"In such a case involving the question of whether the California or the Alaska Workmen's Compensation Act should apply to a resident of California injured in Alaska who brought suit in California, this court has said: 'The enactment of the present statute of California was within state power and infringes no constitutional provision. Prima facie, every state is entitled to enforce in its own courts its own statutes, lawfully enacted.'. . . Not only does the state act in the instant case appear to cover this employee, aside from the constitutional consideration, but no conflicting process of administration is apparent. The federal authorities have taken no action under Longshoremen's Act, and it does not appear that the employer has either made the special payments required or controverted payment in the manner prescribed in the Act."
Mr. Justice Frankfurter seems to have understood the majority opinion as conferring jurisdiction on either the state orfederal authorities according to which one first assumed jurisdiction. He says:
"Theoretic illogic is inevitable so long as the employee in a situation like the present is permitted to recover eitherunder the federal act [authorities cited] or under a statestatute [authorities cited]. That is the practical result, whether it be reached by the court's path or that apparently left open under the Chief Justice's views." (Italics supplied.)
Addressing himself to the same subject, the Chief Justice said:
"The proposition that an employee in a 'twilight zone' (where it is doubtful whether the federal or a state act applies)can recover under either act, not only controverts the words of the statute but also imposes an unauthorized *Page 504 burden on the employer. Besides being subjected to a liability which the statute forbids, he is compelled, in order to protect himself in the large number of cases in which the court apparently would allow recovery under either act, to comply with both. . . . The dual system of presumptions, which are tooperate in favor of the employee but apparently never againsthim, will serve to sustain an exercise of either state orfederal jurisdiction in every case within the so-called'twilight zone.' " (Italics supplied.)
Here the employee chose to invoke the state jurisdiction, under a valid state statute, presumably (judging from the findings of fact), because of inability to prove negligence ofthe employer, which is unnecessary under state Compensation Act. (Olson v. U. P. R. Co., 62 Idaho 423, 428,112 P.2d 1005, and cases cited.) Consequently, if negligence can not be shown, lack of jurisdiction on the part of the State Industrial Accident Board would in this case leave the employee without any relief under either the state or federal statute.
Notwithstanding these misgivings arising out of the opinions in the Davis case, I am inclined to the belief, that this case is covered by the amendment (45 U.S.C.A., 51); and that the State Industrial Accident Board was without jurisdiction to make the order complained of.