Zenz v. Industrial Accident Commission

ANGELLOTTI, C. J.

The petitioners, alleged dependents of Frederick Albert Zenz, deceased, who received injuries in the course of, and arising out of, his employment by the Atchison, Topeka, and Santa Fe Railway Company, which caused his death, sought from the Industrial Accident Commission an award against the Railway Company under the Industrial Compensation Act. After a hearing the commission found that the injury arose out of, and happened in the course of, employment, while the injured employee was performing service growing out of and incidental thereto, in the following manner: “While delivering pouches of mail from the depot at Riverbank to a train he was run down by

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another train.” It, however, dismissed the proceeding for want of jurisdiction, the Railway Company having pleaded and established to the satisfaction of the commission that the injury occurred while deceased was employed by the Railway Company in interstate commerce, and that, therefore, by reason of the act of Congress relating to the liability of common carriers by railroad to their employees, the act generally known as the Federal Employers’ Liability Act, the commission was without jurisdiction.

On the application of petitioners an order to show cause why a writ of

certiorari

or other appropriate writ should not issue was made. Answers have been filed both by the commission and the respondent Railway Company, and the matter has been submitted upon such petition and answers.

It appears that the commission also found as follows: ‘1 That at said time the defendant was a common carrier by railroad engaged in commerce between different states of the United States and said Frederick Albert Zenz was engaged by the defendant in such commerce; that this commission is therefore without jurisdiction in this proceeding.”

It was stipulated at the hearing before the commission that the occupation of deceased “was that of a call boy and delivering United States mail from the defendant’s depot to defendant’s trains and

vice versa,

taking United States mail from defendant’s trains to defendant’s depot, and that while in the performance of this duty of carrying United States mail from the defendant’s depot to defendant’s train, the deceased employee met with injuries, causing subsequent death.” It is not disputed, as set up in the answers, that the Railway Company was a common earner by railroad engaged in interstate commerce, operating trains between the state of California and other states of the United States, and that the train to which decedent was delivering the mail at the time of his injury was an interstate train engaged in interstate commerce, which had stopped at Riverbank on its way to its destination in the state of California. It is further set up in each of the answers that evidence was produced before .the commission to the effect that the article being handled by the .decedent at the time and place of injury, viz., United States mail, consisted in part of com