SUPREME COURT OF MINNESOTA. STATE EX REL. MCCARTHY BROS. CO. V. DISTRICT COURT OF HENNEPIN COUNTY ET AL. (No. 21103.)* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -"ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT.” Respondent's husband resided at Bismark, N. D. He was in the employ of the relator, whose principal place of business was at Minneapolis, Minn. He received a salary and traveling expenses, excepting board while at his home. His duties were to solicit the shipment of grain, from west of the Missouri river, to relator, for sale on commission. While on his way home from his field of labor on Sunday morning, he came to his death by accidental drowning, while attempting to cross the Missouri in a rowboat. Held, that his dependents are entitled to recover compensation under the Minnesota Workmen's Compensation Act (Gen. St. 1913, §§ 8195-8230.) (For other cases, see Master and Servant, Dec. Dig. § 375[2].). Certiorari from District Court, Hennepin County; Charles S. Jelley, Judge. Certiorari by the State, on relation of the McCarthy Bros. Company, against the District Court of Hennepin County and others, to review a judgment granting to certain respondents compensation for the death of Arnold Albert Von Hagen. Affirmed. Cray & Eaton, of Minneapolis, for appellant. McNamara & Waters, of St. Paul, for respondents. QUINN, J. Certiorari to the district court of Hennepin county to review a judgment granting to respondents Von Hagen compensation under the Minnesota Workmen's Compensation Act (Gen. St. 1913, §§ 8195-8230) for the death of Arnold Albert Von Hagen, husband of respondent Blanche Von Hagen, and father of the three minors mentioned in the complaint. The cause was tried before the court without a jury, and submitted for decision upon the pleadings and proofs of the parties. The court made findings of fact and conclusions of law, and ordered judgment that respondents have and recover the sum of $11 per week for 300 weeks, $100 funeral expenses, and $74.60 costs and disbursements.. Judgment was entered accordingly. On April 8, 1917, and for a number of years prior thereto, Von Hagen resided with his family at their home in Bismarck, in the state of North Dakota. Bismarck is on the east, and Mandan a few miles distant on the west, side of the Missouri river. Von Hagen was in the employ, upon a salary and traveling expenses, excepting board and lodging while at his home, of McCarthy Bros. Company, a Minnesota corporation doing a general grain brokerage business in the city of Minneapolis, this state. The contract of employment was made there. It was Von Hagen's duty to travel about, call upon the grain dealers throughout his territory, and solicit the shipment of grain to relators at Minneapolis, for sale on com*Decision rendered, Nov. 1, 1918. 169 N. W. Rep. 274. Syllabus by the Court. mission. He was given no directions as to how or where he might travel; such matters being left to his judgment. Relator's business cards, which were presented to its customers, gave Von Hagen's address as Bismarck, N. D. It was there he received his mail. Decedent spent the night of Friday, April 6th, at his home. The following morning he went to New Salem and transacted some business, returning by way of Mandan, where he arrived at about 7 or 8 o'clock Saturday evening. The channel of the Missouri river, where the railway crosses from Bismarck to Mandan, is about 600 feet wide and spanned by a high bridge. It is about 2 miles from the westerly end of this bridge, across bottom lands, to the easterly yard limits in the city of Mandan. The railway track across these bottoms is on a grade 6 or 7 feet high. On a line between the Mandan yards and the bridge is a mound or high tract of land. The ice in the river had gorged at a point about 12 miles above Mandan. Friday night this gorge gave way, with the result that the railroad track across the bottoms at Mandan was covered with water to the depth of 2 or 3 feet, and all traffic between Mandan and Bismarck was abandoned from Saturday morning until Monday night. On Sunday morning, for the purpose of getting home, Von Hagen and three other traveling men went down to the easterly end of the yards at Mandan, and, with two helpers, embarked in a roundbottomed skiff and started to row to a point near the bridge. When they reached a point near the mound, they concluded that the current and wind were too strong for them to safely proceed further, and they attempted to turn around, when the boat came into contact with the top of a wire fence and capsized. The men held fast thereto, but the current was strong, the water cold, and they were shortly forced to release their hold. All were drowned save one of the helpers. It is urged that decedent was not within the protection of the Minnesota Workmen's Compensation Act at the time of his death, because it appears that he did not come to his death by reason of an accident arising out of and in the course of his employment; that at the time of the accident he had been through with his work since the preceding day; that there was no necessity for his getting home on Sunday; that in order to do so he undertook an extremely hazardous trip for his own purposes, and not in connection with the business of his employers. We are unable to agree with these contentions. Decedent's duties required his traveling from place to place in his territory, which was several hundred miles from his employers' place of business. It was proper that he have some regular or fixed place for communicating with his employers. His home was near his field of labor. He made it his headquarters, as well as his retreat for over Sunday, as he properly would, and as his employers must naturally have expected and intended he should do. Indeed, all of the correspondence between them so indicates. We see no reason why he might not properly, and without stepping outside the scope of his employment, return to his home from his field of labor on the Sabbath day. The case comes within the rules announced in State ex rel. Chambers et al. v. District Court, 139 Minn. 205, 166 N. W. 185. We think the trial court was justified in finding from the evidence that decedent came to his death by reason of an accident arising out of and in the course of his employment. When he attempted to cross the river, the usual means of travel by rail had been abandoned because of the high water. The only available means of crossing was by boat. Others had crossed over safely by the same means on the previous day. It was left to decedent's judgment as to how or where he might travel. He may have been somewhat negligent, but there is nothing to indicate an intentional or wilful want of care on his part. He was in the act of returning to the shore when the accident occurred. To justify a recovery under the statute, it is unimportant that the employee might have been at fault, if not willfully so. G. S. 1913, § 8203. The record justifies the findings of the trial court. Affirmed. SUPREME COURT OF MONTANA. MATTI CHICAGO, M. & ST. P. RY. CO. (No. 3943.)* 5. COMMERCE EMPLOYERS' LIABILITY ACT-RAILROAD CONSTRUCTION-EMPLOYEE-"INTERSTATE COMMERCE.” A servant engaged in wheeling bricks from freight car on siding to freight terminal in course of construction was not engaged in "interstate commerce," and could not recover under the federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665), when injured through the negligence of a fellow servant. (For other cases, see Commerce, Dec. Dig. § 27[5]..) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.) Appeal from District Court, Fergus County; Roy E. Ayers, Judge. Action by John Matti against the Chicago, Milwaukee & St. Paul Railway Company. Judgment of nonsuit and order denying new trial, and plaintiff appeals from the order. Affirmed. E. K. Cheadle, of Lewistown, for appellant. HOLLOWAY, J. In October, 1913, the Chicago, Milwakee & St. Paul Railway Company owned and operated, as a part of its system, branch line from Harlowtown to Lewistown and handled all its freight at the Lewistown terminal, at what is designated "the old warehouse." The company was then engaged in constructing a new line of road from Lewistown to Great Falls, and was likewise building a new warehouse in Lewistown several blocks away from the old one. The new warehouse was completed and put to use in January, 1914, and the new line was completed several months later. The company had moved a carload of bricks from a brick manufacturing plant in Lewistown to a point on a spur track near the new building, and plaintiff was employed to take the bricks from the car to the building. Another employee of the company worked inside the car, carrying the bricks and piling them in the car door for plaintiff to place in a wheelbarrow and remove to the building. While these men were thus engaged on October 11, 1913, some bricks fell upon plaintiff's foot, causing injury. He brought this action to recover damages and alleged that the company furnished the workman within the car with a brick-carrying device which was out of repair and dangerous; that the company knew, but plaintiff did not know, that the device was in a defective condition; and that the company, through its * Decision rendered, Nov. 12, 1918. 176 Pac. Rep. 154. employee who was using the device, negligently permitted bricks to fall from it upon plaintiff, causing the injury. To bring himself within the federal Employers' Liability Act and avoid the defense of fellow servant's negligence plaintiff alleged that, at the time of the injury, the company was engaged in interstate commerce. and that he was employed in such commerce. This last allegation was put in issue, and the company pleaded the defense of fellow servant's negligence. Upon the trial, the court granted a motion for nonsuit, and plaintiff appealed from an order denying him a new trial. · [1, 2] There was not any evidence offered to sustain the allegation that the carrying device was out of repair, and if it be conceded, for the purpose of this appeal, that negligence was shown, it was the negligence of the fellow servant. The circumstances do not admit of the application of the maxim, "Res ipsa loquitur." [3] In order to make out a prima facie case, it was incumbent upon the plaintiff to prove that he was employed in interstate commerce at the time he was injured. The federal Employers' Liability Act (Act April 22, 1908, c. 149, § 1, 35 Stat. 65 [U. S. Comp. St. 1916, § 8657]) provides: "That every common carrier by railroad while engaging in commerce between any of the several states * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce." [4] Appellant relies upon the decision of the Supreme Court of Utah in Grow v. Oregon S. L. Co., 44 Utah, 160, 138 Pac. 398, Ann. Cas. 1915B, 481; but in the later case of Perez v. Union Pac. R. Co., 173 Pac. 236, the same court, after reviewing the later federal cases and adverting to the fact that the Grow Case was decided by a divided court, said: "Whether the majority opinion would stand to-day in the light of more recent opinions by the United States Supreme Court is at least a debatable question." The construction of the act of Congress above involves a federal question with respect to which the decisions of the Supreme Court of the United States are conclusive upon this court. In Pedersen v. Delaware, L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648.57 L. Ed. 1125, Ann. Cas. 1914C, 153, the court determined that an employee engaged in bringing materials for the repair of a bridge actually in use as a part of the company's line for the transportation of interstate commerce was engaged in such commerce, but emphasis was laid upon the fact that the bridge was actually in use in interstate commerce and that work of keeping it in repair was so closely related to such commerce as to be, in practice and in legal contemplation, a part of it. The court said: "The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? (Citing cases.) Of course, we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such." In Illinois Cent. R. R. v. Behrens, 233 U S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, it was held that a member of the switching crew engaged in moving cars loaded with interstate freight, from one part of New Orleans to another, was not engaged in interstate commerce, though the company handled interstate shipments and plaintiff at other times moved cars loaded with such freight. The court referred to the language of the act above, and said: "It is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employee is engaged is a part of interstate commerce." In Delaware, L. & W. R. R. Co. v. Yurkonis, 238 U. S. 439, 35 Sup. Ct. 902, 59 L. Ed. 1397, it was held that an employee engaged in one of the company's collieries mining coal for use upon locomotives engaged in interstate commerce was not himself engaged in such commerce. In Shanks v. Delaware, L. & W. R. R. Co., 239 U. S. 556, Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, it was held that a machinist who was injured while moving an overhead countershaft, through which power was communicated to machinery for repairing locomotives used in interstate commerce, was not himself engaged in such commerce. The court said: "Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in practical one better suited to the occasion (see Swift & Co. v. United States, 196 U. S. 375, 398 [25 Sup. Ct. 276, 49 L. Ed. 518]) and that the true test of employment in such commerce in the sense intended is: Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" In Chicago, B. & Q. R. R. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, it was held that a member of a switching crew engaged in moving cars of coal from a storage track in Kansas City to coal bins in another part of the city was not engaged in interstate commerce. It was held to be immaterial whether the coal was brought from points within or without the state of Missouri, and the test applied in thể Shanks Case above was reiterated, and the court observed: "Manifestly, there was no such close or direct relation to interstate transportation in the taking of the coal to the coal chutes." Notwithstanding the difference in the facts, the general principles announced above were deemed controlling in each of the following cases involving facts analogous to those presented in the present appeal: In Raymond v. Chicago, M. & St. P. Ry. Co., 243 U. S. 43, 37 Sup. Ct. 268, 61 L. Ed. 583, there were presented these facts: The Milwaukee main line had been completed from Chicago to Seattle, and had been employed for several years in interstate commerce. In order to shorten the line, lessen the grade, and make more efficient its service, the company commenced cutting a tunnel through the mountain between Horrick's Spur and Rockdale, Wash., with the intention of using the tunnel, when completed, for the main line. Raymond was employed as a laborer in the tunnel work and was injured while in the discharge of his duties and before the tunnel was completed or in use. The court said: "Considering the suit as based upon the federal Employers' Liability Act, it is certain under recent decisions of this court, whatever doubt may have existed in the minds of some at the time the judgment below was rendered, that under the facts as alleged Raymond and the railway company were not engaged in interstate commerce at the time the injuries were suffered, and consequently no cause of action was alleged under the act"-citing the Yurkonis and Harrington Cases above. At the same term, the court decided the case of New York Cent. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. The railroad company, an interstate carrier, was engaged in building a new station and new tracks upon its line. White. was employed by it as a watchman to guard tools and materials intended to be used in the new construction work, and while so engaged was killed. The action was brought by his surviving wife. The Supreme Court disposed of the case as follows: * "The first point assumes that the deceased was employed in interstate commerce at the time he received the fatal injuries. The admitted fact that the new station and tracks were designed for use, when |