Reed v. Pennsylvania Railroad Company

PETITIONER:Reed
RESPONDENT:Pennsylvania Railroad Company
LOCATION:

DOCKET NO.: 621
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Third Circuit

ARGUED: May 01, 1956
DECIDED: Jun 11, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – May 01, 1956 in Reed v. Pennsylvania Railroad Company

Earl Warren:

Number 621, Martha C. Reed, versus Pennsylvania Railroad.

Mr. Lord.

Joseph S. Lord, III:

May it please the Court, Your Honors.

This case is here on a writ of certiorari to the United States Court of Appeals for the Third Circuit, to review the decision of that Court affirming the decision of the District Court for the Eastern District of Pennsylvania which dismissed the petitioner’s complaint filed in that court under the provisions of the Federal Employers’ Liability Act.

The question of coverage was raised by a motion to dismiss.

The District Court decided it adversely to the plaintiff and dismissed the action because without the federal jurisdiction, there being no diversity, there was no basis for federal jurisdiction.

The action arises out of an accident which happened on July 19th, 1951.

Erroneously stated in our brief as July 15th, 1951, although I think the typographical error is not material.

The accident happened at the 32nd Street Office building of the respondent, defendant Railroad Company.

That was in Philadelphia.

At that office, and these facts are without contradiction, there are on file some 325,000 original tracings from which blueprints are made.

The tracings cover and the blueprints made from them also cover every single part of the respondent’s system, all of its mechanical equipment, all of its cars, all of its locomotives, its engines, its bridges, its package.

It covers the entire system which extends into ten different states and the District of Columbia.

It is the only place on the entire system where these original tracings are kept and it is the only on the entire system where the blueprints are made for the use in shops and in repairing of trucks, bridges, and other structures.

Sixty seven percent of the blueprints that are made in the 32nd Street Office building or 32nd Street Office building, yes, go into states other than Pennsylvania.

And the cars which they cover, of course, are operated over the respondent’s entire 10 state and District of Columbia system.

The method in which the work is done is that orders come in from the various repair shops which themselves are located in various parts of the country for the blueprints that are needed in order to maintain, repair and keep functioning the respondent’s equipment and trackage.

The prints were made, as I say, in the 32nd Street Office and are then sent to the various repair shops where the work of maintenance and repair is done or to the various locations where the track work is done or where track repairs are done.

The plaintiff’s position in this scheme of things was the duty of picking up in the mornings the orders as they came in from the various repair shops.

The orders would call for a specified blueprint of a specified car or track or whatever it maybe, and it was her duty to select from among the 325,000 original tracings that were on file there, the proper one so that the proper blueprint could be made from it.

She would then take the — the original tracing having selected it from its proper place in the file and having made the proper selection to the blueprint maker who would make from that, from her selection the blueprint that the tracing called for.

She also had the correlative and equally important duty of replacing in its proper place in the files the original tracing.

I say an important duty because obviously, it was important that she get it back in the right place so that the next person looking for it wouldn’t have to look through 325,000 original tracings before they came across it.

On these facts, the District Court and the Circuit Court in affirming held that the — in effect, that the petitioner’s duties did not further interstate commerce.

As we see it, the lower court, and I’m speaking here of the Court of Appeals, fell into two basic and fundamental errors.

Fundamental errors which require, it seems to us, reversal and fundamental errors which were allowed to go uncorrected would emasculate the 1939 Amendment to the Federal Employers’ Liability Act.

The first error into which the Court fell was its unstated premise although nonetheless clearly apparent from its opinion that the words interstate commerce, in the — even in the amended Act were equated with what we may call the classical staff of railroading, the engines, the breaks, the tracks and the switches.

And that almost physical proximity, physical contact with this stuff of railroading was required in order for an employee to be covered by the Act.

Now that truncated view, if you will, of the Act fails utterly to give any significance whatsoever to the enlarging words of the 1939 amendment.

And here it’s important, it seems to me, to contrast the words that were used in the 1939 amendment with the language that was used in the original act or rather the second act of 1908.

Joseph S. Lord, III:

I say second because as Your Honors know, the first was unconstitutional.

The language of the Act of 1908 and significantly enough continued on without change in the first paragraph of the amended Act of 1939 was, that the carrier was liable for injuries to any of its employees who were injured while employed in such commerce.

This Court early and continuously construed commerce in that sense to mean transportation.

Therefore, under the 1939 Act or the 1908 Act, the criterion for coverage was actual employment in transportation.

Now, the 1939 Act, however, went far beyond that and as opposed to employment in commerce, merely stated as the touchstone that the duties shall be in furtherance of interstate or foreign commerce or shall, in anyway, directly or closely and substantially affect such commerce.

Felix Frankfurter:

Mr. Lord, it maybe merely —

Joseph S. Lord, III:

Yes, sir.

Felix Frankfurter:

— a matter of language, even the second paragraph under which Congress didn’t reject as in employed in but at the time what constituted an employer.

Is that correct?

Joseph S. Lord, III:

As Your Honor said, I — I think that is a matter of niceness but I think the distinction is of extreme importance.

I think that there is a — a distinct difference between the man who holds the throttle, runs the engine, puts on the break, throws the switch and a person who contributes to that operation.

Felix Frankfurter:

I’m not suggesting that the second paragraph is doing this.

I’m not suggesting that it wasn’t meant to do something.

I’m not suggesting the situation wasn’t a disheveled situation.

I merely we suggest that Congress still had its eye on.

Joseph S. Lord, III:

Transportation?

Felix Frankfurter:

(Inaudible) — employed in such commerce.

Joseph S. Lord, III:

Yes, sir.

I think — I think that Congress probably could not have regulated it unless it had, had its eye on that but knowing now its —

Felix Frankfurter:

That’s because it accepted the — they accept it as to how that decision (Inaudible)

Joseph S. Lord, III:

Well, sir, I’m not sure about that in view of the legislative history where they apparently accepted the Jones and Laughlin decision as controlling.

Felix Frankfurter:

Certainly.

All I’m saying is that they couldn’t make it (Inaudible) based on these stages in which it covers transactions, (Inaudible) or activities by the employee for an interstate carrier which have nothing to do with any convention of his — with activities in commerce.

Joseph S. Lord, III:

Unquestionably, Your Honor, unquestionably.

There’s no doubt about that.

And precisely what Congress —

Felix Frankfurter:

And this — this doesn’t offer difficulties disclosed in that (Inaudible)

Joseph S. Lord, III:

But precisely what Congress did, it seems to me, is that the word commerce and the words interstate commerce as embodied in the 1939 amendment, actually embraced a different concept from the pre-1939 concept of interstate commerce.

And if I may illustrate that Mister — Mr. Hildebrand started me on it perhaps, but if we look at this lectern as he did, as being transportation, then the imposition of the employee on that and that I consider to be engagement in rather than mere furtherance of but engagement in.

The imposition of the employee on the concept or the idea of transportation that was the area and that was the periphery of the area which Congress was regulating under the 1908 Act.

Joseph S. Lord, III:

Now however, the employment in, in that sense, in the actual movement was abolished by the 1939 amendment because they used the words in furtherance of and that I conceive to be something like this.

This employee furthering this business of transportation, although not in it over here, but furthering it from here and this employee furthering it from here and an unbroken chain of furthering interstate commerce.

Felix Frankfurter:

Your argument could have (Inaudible) having no persuasiveness at least with me, that Congress can only use the first clause and stop there, period.

Joseph S. Lord, III:

Sir, I think the legislative history maybe of importance in that.

I think unquestionably, the legislative history showed that what we wanted to do was to go as far as we could go.

And that’s what we tried to do.

We tried to go as far as we could go.

The mere fact that Senator Austin was concerned with whether or not they would go constitutionally too far is an indication that Senator Austin wanted to enlarge the scope of the Act.

But even if he had used only the words furtherance, then, of course, it seems to me, that those — that — that there could be no question about the extent, the broadening of the scope of the Act.

They did not.

But the second set of words, I think as nearly as I can penetrate the mentality of Congress and that is difficult I suggest to Your Honors for a layman such as myself.

They were words —

Felix Frankfurter:

Here in the same boat.

Joseph S. Lord, III:

Sir.

Felix Frankfurter:

We are in the same lead insofar is that is —

Joseph S. Lord, III:

But from a different viewpoint, sir.

Hugo L. Black:

The record showed — does the report of the hearing or anything show who drew the bill?

Joseph S. Lord, III:

Who drew the bill?

Hugo L. Black:

Yes.

Joseph S. Lord, III:

I don’t believe, sir, that the — there is anything in the report of the proceedings would show who actually framed the bill, at least not to my knowledge.

But in any — at any rate, there can be no doubt, it seems to me, that they intended to go much, much beyond the narrow concept that had been engrafted upon the 1908 Act.

And this was something which the Court of Appeals gave no attention to whatsoever.

That error, I think, and by the way while I’m addressing myself to that, may I say just one word on this so-called moment of injury test.

There seems to be a question of whether or not, the Act did not merely do away with the moment of injury test.

I suggest to Your Honors, that — that if that had been the mere intent of Congress, they could simply have added to sect — to paragraph 1 of the Act of 1908 the words instead of saying, any person suffering injury while he is employed by such carrier in such commerce, simply by amending that to read, any person suffering injury, any part of whose duties shall be employment by such carrier in such commerce.

In other words, it is the phrase in any part which does away with the so-called moment of injury rule, and the phrase “in furtherance of” which broadens the scope of the type of employee and the type of job which is covered.

Now, the second error, I think, into — and this I think is fatal into which the Court of Appeals fell was the error of what you might call job label or job status.

That is attaching some importance and in fact almost transcendent importance to the relative importance of the job in the hierarchy of the railroad echelons or determining upon a label, i.e., clerical worker and using the label without regard to the job function and through the job function its impact upon interstate commerce.

The label itself is of no importance whatsoever whether Ms. Reed be called a clerk or a blueprint executive is of no importance whatsoever.

The important thing is the analysis of her functions in connection with the stream of interstate commerce.

Joseph S. Lord, III:

Once you do that, it seems to me, you reach no conclusion other than the fact that her duties did have an effect an immediate effect upon interstate commerce.

How would you classify the president’s secretary?

Joseph S. Lord, III:

I beg your —

How would you classify the president’s stenographer under your view of the Act?

Joseph S. Lord, III:

Your Honor, in order to answer that and because of the very nature of the test which we urge here, I would have to know more about the duties, more about how her work does she view merely with — with filing.

I would have to know more about her duties and how her duties affected interstate commerce.

Felix Frankfurter:

In other words there is a problem with proximity and degree (Inaudible)

Joseph S. Lord, III:

Proximity and degree to interstate commerce, yes, sir, —

Felix Frankfurter:

Yes.

Joseph S. Lord, III:

— but not to transportation.

Justice Harlan asked during the preceding argument, were all railroad employees covered by this?

Categorically sir, my answer is no.

My answer is no.

Felix Frankfurter:

So you do — cannot construe furtherance as just furthering because cutting out intrastate commerce, all the employees of the Pennsylvania (Inaudible) exclusively relating to interstate grand petition by the (Inaudible), how furthering in interstate commerce?

I’m assuming you’re all pertaining to their job, aren’t they?

Joseph S. Lord, III:

No, sir.

Felix Frankfurter:

They are not?

Joseph S. Lord, III:

No, sir.

May I say it — may I — it’s not —

Felix Frankfurter:

(Inaudible) Secretary of the Pennsylvania Railroad wouldn’t be but — but those who are concerned with Pennsylvania Interstate District are there before the — are there before and presumably the Pennsylvania made a judgment that they required to (Inaudible) a business.

Joseph S. Lord, III:

Well, may I suggest to Your Honor, and I do this with all deference again in respect to the niceties and that is that we have to know exactly what we’re talking about when we talk about interstate commerce.

Now, I have this in mind, sir.

The Pennsylvania Railroad employees, a laborer, to sweep up the leaves and to take care of the flowerbeds at a station, which is used on its interstate lines, he is furthering his employer’s business if he’s in the scope and course of his employment.

But his relationship to interstate commerce and his impact and effect upon interstate commerce is nil.

That employee —

Felix Frankfurter:

I don’t know about that.

I don’t know about that than it is — Pennsylvania (Inaudible) in the local stations, now that has some effect on whether you go (Inaudible) Pennsylvania would be (Inaudible)

Joseph S. Lord, III:

Yes, sir, but I don’t think that their mere likes and dislikes would have a question or an effect upon the interstate commerce.

Felix Frankfurter:

It can’t be just to inquire whether without that particular functionary, the Pennsylvania couldn’t conduct their business.

Joseph S. Lord, III:

Precisely, sir, and that is the test which I am suggesting here, what I might call for one of a better word the withdrawal test.

Joseph S. Lord, III:

Withdraw the duties performed by this particular individual and does interstate commerce suffer, is it affected or is it not?

Felix Frankfurter:

I don’t see why you difficulty in answering Justice Harlan’s question.

I can’t imagine that the President of Pennsylvania could carry on without having a secretary.

Joseph S. Lord, III:

Well, perhaps, again like Senator Austin, it’s an over abundance of caution, I didn’t want to go too far and was trying to confine myself to the facts that we have here in the Reed case because I think in this case there is no question.

Felix Frankfurter:

I merely suggest that you cannot stand on the mere English of the phrase “furtherance of”.

Joseph S. Lord, III:

And I agree with that.

Felix Frankfurter:

Suppose you go beyond where you want to go, and once you say that then we get back to the old difficulties of where to draw the line.

Joseph S. Lord, III:

Well —

Felix Frankfurter:

Proximity and degree express that (Inaudible)

Joseph S. Lord, III:

I — I agree that you can’t stand on the proximity test or on the word “furtherance” in relation to the railroad’s business, but you can I think stand on the word “furtherance” in relation to the phrase “interstate commerce”.

The — take for example the facts in this case.

Here’s a lady who is charged with the duty of selecting a proper blueprint.

Let me suggest the example to Your Honor of a bridge upon the railroad’s lines, a drawbridge, if you will.

And the drawbridge is raised and something goes wrong with the lowering mechanism and the drawbridge won’t come down.

Immediately a hurried call comes in to 32nd Street Station — 32nd Street Office building for a blueprint of the lowering mechanism.

Ms. Reed misperforms her function and selects instead of the lowering mechanism the raising mechanism, and gives that to the blueprint maker who makes the blueprint and rushes it up to the point where the repairs are being made on the bridge.

Immediately comes back a frantic call that, “You’ve sent us the wrong blueprint.”

Trains are piling up on each side of this — of this raised drawbridge.

Interstate traffic can’t move, why?

Because Ms. Reed misperformed her job.

And that is the type of test which we proposed to this Court.

The type of test which will analyze the job function, analyze the impact of that function upon interstate commerce.

And once that job function is analyzed here, the impact upon interstate commerce is immediate, it’s apparent, and may even be cataclysmic if the job is not performed or is misperformed.

Compare that for a moment with the Peterson case where even before the 1939 amendment, Peterson was held to be in interstate commerce and covered by the 1908 Act where he was a riveter who was repairing a bridge.

The person who hands him the blueprint to tell him where to drive the rivet is equally as important in the scheme of interstate commerce as the man who drives the rivet himself because if he doesn’t know where to drive the rivet, his job will cease.

The job that’s dependent upon him just as in the assembly line of the Southern Pacific will come to a halt because that job was not performed.

The Court of Appeals started on the right track.

When the Court of Appeals resorted to the old poem of “for want of a nail, the shoe was lost and for want of a shoe, the horse went lame”.

Unfortunately, the Court stopped short of the ultimate.

They reached the penultimate but stop short of the ultimate, because having gone that far and having recognized that there is a chain of proximate relationships which advanced interstate commerce, which further interstate commerce in a very real sense, they nevertheless stop short because of a job label, namely, that the lady was a clerk.

Why do you hesitate to go the whole length of your argument?

You say that the effect of the 1939 amendment is to bring in all railroad employees.

Why do you hesitate to go that far?

Joseph S. Lord, III:

Because, sir, if we — if we were to go the whole length, then it would make meaningless the — the second section of the statute.

All they would have to say would be any employee of an interstate carrier by rail.

Yes, but you can argue neither end as far as the grammar of the statute is concerned, you can argue of the other side as well as you can argue yours, don’t you have perfectly underlying — of the underlying purpose of all that?

Joseph S. Lord, III:

Yes, sir, I — I would disagree with one thing.

I — I don’t think I could argue the other side as well as I could argue mine but — [laughter] because I’m not convinced of the other side.

But be that as it may, sir, I — I don’t think — I don’t think that Congress intended to go as far as covering every single railroad employee.

I think that Congress intended to cover those railroad employees who furthered interstate commerce in a very real sense as Ms. Reed does in a very real sense, furthered interstate commerce by the work that she performed.

The —

Stanley Reed:

Well, it’s easy to make positive inquires, but what about the — the photographer who copied the blueprint?

Joseph S. Lord, III:

The what, sir?

Stanley Reed:

The photographer or copyist of the blueprint?

How do you — how do you get a duplicate of the blueprint?

Photograph it or —

Joseph S. Lord, III:

I guess so.

I’m not completely sure of that.

Stanley Reed:

(Voice Overlap) —

Joseph S. Lord, III:

But I — I think —

Stanley Reed:

— somebody says something, they sent you with all the blueprints you want.

Joseph S. Lord, III:

Sure.

I would say that — that if that job were misperformed or not performed, there would be an immediate effect upon interstate commerce.

I’ll go one step further with Your Honor Mr. Justice Reed.

I’ll say that the boy who takes the blueprint to the mail is covered.

There maybe office boys who aren’t covered, who simply deliver intradepartmental memos that have no relationship to interstate commerce such as when they’re going to take their vacations and a new rate of pay or something.

But he may not be covered but not because he’s an office boy, but because the function that he performs is — does not have a direct bearing upon interstate commerce.

Felix Frankfurter:

The telephone girl who takes the call and connects with Ms. Reed so that she may perform (Inaudible)

Joseph S. Lord, III:

I’m not sure whether the misperformance of her function would have any effect to interstate commerce, sir.

Felix Frankfurter:

Could certainly be if they couldn’t get to Ms. Reed.

Joseph S. Lord, III:

Well, if she didn’t do it?

Felix Frankfurter:

Not in time.

Joseph S. Lord, III:

If she didn’t do it, if she simply connected with a wrong number and then connect it right back again.

Felix Frankfurter:

(Inaudible) what the — is — to the analogous situation of the law and the causation, the message, all arising under and it is the same as the (Inaudible) case, but to the rising under the Federal Act, namely, we’re not talking here about the ultimate reach and causal connection philosophically considered.

We’re talking of the sensible way what is causal relation which function right into the second clause.

Joseph S. Lord, III:

If Your Honor will note, of course, first of all, the two clauses as Judge Biggs noted in his dissent, in this case, are in the disjunctive.

The — or I think is not epexegetical in the sense that it is explanatory of the first phrase.

I think the two mean two different things.

Felix Frankfurter:

The other day we had long argument of what it all means, Mr. Lord.

Joseph S. Lord, III:

Since I’m on this —

Felix Frankfurter:

(Voice Overlap) the question.

Joseph S. Lord, III:

Since I’m on this summary docket, sir, I’m afraid I’m barred from that.[Laughter]

But at any rate, the second — the — the second point that I should like to make to Your Honor is, I thought of the — the Squib case, the — the but for rule, and proximate cause.

But here we’re not talking about cause, sir.

We’re talking about effect which I think is different and we’re talking not in a legal or philosophical sense, we’re talking in a hard realistic sense.

At least that’s what I’m trying to do, sir, in a hard realistic sense as to whether or not the performance of this function has a direct bearing, a furthering effect, if you will, upon interstate commerce.

Felix Frankfurter:

You mean, a very interesting suggestion although that they’re effected by cause in this case.

Joseph S. Lord, III:

No, sir, I didn’t intend to suggest that but merely that here we’re not looking at — at causation.

We’re looking at the effect of what a given person does and I suggest to Your Honor that the but for test, if — if I’m impelled on that at the moment, I didn’t intend to be.

But if I am, I suggest to Your Honor that it’s a good test.

In this respect, the withdrawal test, withdraw the function and do we have an effect on interstate commerce.

That is the test which the court below refused to apply.

The court below forgot that it was not important that a private lost the horseshoe nail or a general lost the horseshoe nail.

The job status of the man that lost the nail was totally unimportant.

The important thing was the function of the nail and the fact that nail was lost.

And I say to Your Honors, that’s the important thing in Ms. Reed’s case.

Analyze from that standpoint, there is a real, a definite effect upon interstate commerce in her job and on these facts.

I respectfully suggest to Your Honor that she fulfills both ends of the statute, that her work furthers interstate commerce and affects it directly or closely and substantially.

Stanley Reed:

Would you have the — you used all — the report that was — had been referred to this morning, the report you (Inaudible) to define the support to your view in that?

Joseph S. Lord, III:

Only in the sense, sir, that — well the — the report, I may say, as Justice Frankfurter pointed out this morning dealt with the so-called abolition of the — of the so-called moment of injury or pinpoint test.

Joseph S. Lord, III:

It did.

But that was not restricted and the statute itself did much more than that.

Stanley Reed:

I might look at the statute and re-review it, and when I look at the report I wonder whether it was intended that way.

Joseph S. Lord, III:

I suggest to Your Honors that if you just look at the — at the report, you had also looked well at what Senator Austin said showing a very definite knowledge that they were not only abolishing the moment of injury test but were completely broadening the periphery of the job functions that were embraced in the Act itself.

Earl Warren:

Mr. Voorhees.

Theodore Voorhees:

May it please the Court.

I’d like to call Your Honors’ attention preliminary to a typographical error on page 43 of my brief.

In Footnote 66, exactly halfway down Southern Pacific Railroad versus Industrial Accident Commission, 88 California Appeals that should be second by mistake the second was left out.

66 of which?

Theodore Voorhees:

It’s Footnote 66 halfway down, the Southern Pacific versus Industrial Accident, that should be second.

Now if Your Honors please, to narrow the issue here a little bit, all the counsel that have argued this morning, I think, would agree that the main purpose or certainly a purpose of the 1939 amendment was to abolish the moment of injury rule.

And the issue, it seems to me is, did it enlarge coverage beyond bringing in those employees who were formally barred by that rule or did it do — did it — did it enlarge it or did it do nothing more than abolish that rule.

Now, the petitioner concedes in this case, concedes that all employees are not covered.

I think counsel is impelled to make that admission because it would have been so very easy for Congress to have written this Act in terms that would have covered all employees had it had any intention to do so.

Two years before in the railroad at the time enacted had done exactly that, the year before in the railroad and Employment Insurance Act had had also brought in all employees.

There’s no question whatever despite the Howard case decision that Congress was aware of the fact that in 1939, under the decisions of this Court, the entire railroad industry was subject to regulation certainly insofar as supply relationship were concerned if it is so intended.

We concede of course that the result of this amendment was enormously to broaden the coverage of the Act because after the 1939 amendment, all transportation employees whether they were engaged in intrastate commerce or interstate commerce for all intents and purposes were brought within the scope of the Act the minute the moment of entry will — was abolished.

Of course, it had a very broad effect on — on shop employees also soon as a — an engine, any instrumentality of transportation was being repaired.

The mere fact that at the very moment of the man’s injury, that he was working on a dead locomotive, no longer was he barred, he was recovered.

Now, counsel have made a very fleeting reference to the first paragraph of the first section of the Act, which is in the 1939 amendment.

In other words, Section 1 of the Act is composed of two paragraphs of which the first paragraph was in the 1908 Act.

And that the reenactment of that section carried with it, of course, the gloss of this Court’s construction.

And when Mr. Hildebrand this morning said that all the cases that were decided before 1939 should be cast into limbo, he utterly ignores the principle that when this — when this Court interprets a — a paragraph such as the first paragraph of this section has been reenacted that you can’t just throw into limbo all the cases cited by this Court under that section before.

They are part of the warp and woof and they’re still before us.

So that in attempting to find the meaning of the 1939 amendment, we have to start not with the second paragraph, and start worrying about furtherance, but we have to start with the reenacted paragraph 1 and see what this Court had said that meant prior to 1939 because since Congress reenacted that paragraph, there’s an inference at least that — that everything that had been said about it before still stood.

Now, there were several points of great importance with reference to that first paragraph which were briefly mentioned this morning but I want to repeat them.

In the first place, in the Shanks case, Your Honor said that commerce meant transportation.

And again and again and again, this Court went back to the Shanks case until finally in 1932 in the Ball case, the Court said, “When we define commerce to mean transportation, we wrote a role which have adhered to in every case since except in one or two cases where inadvertently, we overlooked it and those cases were subsequently overruled.”

Therefore, we start off with interstate commerce meaning interstate transportation and I submit to Your Honors that that meaning must carry over into the second paragraph, just as it must be applied to the first paragraph tined with the loss of interpretation.

Now, in the second place, and I think this is equally important, the 1908 Act was not interpreted by this Court as applied only to employees in transportation.

Theodore Voorhees:

That is only to the cruise of trains, because in a series of decisions, the Court parted at 1939 had interpreted the Act as being broad enough to include in addition to the train cruise and those directly engaged in transportation.

It said that those whose duties directly affected transportation were likewise within the Act.

And finally in a series of cases it said, those whose duties so closely affected transportation as to be in legal contemplation and practical effect apart of that transportation that they also are brought in.

So that by 1939, there were three groups of employees or three broad categories of employees who were concededly within the terms of the Act.

Now they were first the transportation employees themselves.

The engine man, fireman, conductors, break man.

Secondly, those whose duties directly affected transportation.

And within that category were the yardman, certain station employees, a switchman, all the people who were on the ground but who by their duties cause transportation to move in one direction or another.

And then thirdly, there was a group who came within whose duties brought them closely in the contact with transportation.

And they also were permitted to recover and within that category were those who maintain the right of way, those who repaired the instrumentalities of transportation, possibly others.

Two great defenses that were brought forth again and again by the railroads blocked the congressional purpose in providing a strong remedy for those employees who faced the great hazards of the railroad industry.

This Court said that the employee had to be engaged in interstate commerce at the very moment of injury and this Court said that assumption of risk barred recovery.

And between the horns of those two, two horns of that dilemma, case after case resulted in a denial of recovery in the decisions of this Court.

Now, if Your Honors will review the whole legislative history of this case, there’s no question that in 1939, Congress was concerned with those two things and those two things alone.

There is word — a word here and there in which they deal with the constitutional issue and they put in the words closely and substantially and so on.

But the whole drive of Congress was aimed at polishing the moment of injury rule in its dual aspects of the man who’s in intrastate commerce at the very moment or the instrumentality that was taken out of interstate and at dead locomotive at the moment and the abolition of the assumption of risk doctrine.

Congress had to put in the language the question — the broadened coverage which it was supplying when it abolished the moment of injury rule.

Of course, the assumption of risk, that was taken care of in a different section.

But in Section 1 of this amendment, they were only dealing with the moment of injury rule.

Now, I’ll ask Your Honors to turn to the language of the Act on page 7 of my brief, the second paragraph.

The keywords in the first place are any part of those duties and the furtherance clause, they directly, closely and substantially clauses, the — the subject to those clauses in each case is any part of whose duties and it’s perfectly clear that those words were aimed only at getting rid of the moment of entry rule.

The clause dealing with furtherance, I submit, was clearly intended to take care of the employees who were actually in transportation and that it did not have any broad sweep such as has been suggested here today by other counsel in this case.

Furtherance was used in the sense of motion, the moving transportation.

Your Honors must remember that we’re referring here to furtherance of interstate or foreign commerce by the language but for commerce, you must substitute transportation since that was part of warp and woof of the reenactment of the first paragraph.

Stanley Reed:

Why do you have to do that?

Theodore Voorhees:

Well because — because Your Honor, this Court had said again and again in — that in paragraph one, that for commerce you must read transportation and when Congress reenacted that paragraph it seems to me perfectly clear that Congress had in mind continuing the basic purpose of this Act which dealt with transportation employees, otherwise, they would have said by Congress, we mean interstate commerce in all its aspects as they did and all the other contemporary legislation that was enacted during this period.

I don’t think you can — you can start off and say that the first paragraph, although it’s reenacted, now means something entirely different from what it meant under all our decisions.

When we said over and over again, that commerce meant transportation, simply because a new paragraph was added and if Your Honors again will look at the legislative history, you’ll see that — that in the report they cited that fact that this Court have ruled that commerce meant transportation.

And there’s no suggestion whatever that they meant to change that — that basic principle.

Now —

One thing I hope you’ll deal with before you sit down, that is to send the rest of the statement.

Theodore Voorhees:

Yes, sir, I shall.

I shall.

Furtherance had been used in a number of earlier cases including one in this Court and had it been used in Roberts and various other places which I’ve cited in my brief as meaning motion, promotion movement of transportation, and we interpret the furtherance clause as applying the abolition of the moment of entry rule insofar as it applied to the cruise of the trains, those who were actually engaged in transportation.

Then the directly clause or that the directly phrase was intended to abolish the moment of entry rule as it was applied to those who were not in transportation but whose duties had directly affected them, in other words, the — the yardman and switchman and so on.

And then they closely and substantially phrase again the predicate of the subject any part of whose duties again is simply a clause intended to abolish the moment of entry rule insofar as it was applied to repairman and maintenance man.

Now, that construction of the amendment is fully borne out by the legislative history, and I — I’d like to come immediately to — to Justice Harlan’s point.

In the first place, I would like to, with Your Honors’ indulgence, to read to you the two paragraphs on page 22 of my brief which was the entire report of the conferees after the — the bill had been passed by both the House and the Senate.

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 the provisions employees of common carriers who, while ordinarily engaged in the transportation of interstate commerce, maybe at the time of the injury temporarily divorce there from and engage in intrastate operations.

The question whether an employee at the time of this 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 the railroad company who maybe 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 a practically a part of it.”

Now, Senator Austin was the person who was responsible for limiting rather than broadening the language of the amendment.

In addition to the — the — being responsible for putting in the so closely — closely and substantially clause, he also was responsible for knocking out a clause or a phrase that was interpolated within the amendment as recently drawn which provided in any degree incidental to.

And he said that he saw that was too broad and — and have it knocked out and put in the closely and substantially instead.

Now, I think that it was perfectly clear that from all the background of the discussions, the fact that Mr. McGrath who was the proponent of this Act himself testified that this would only that the — the amendment would only apply to the same employees to whom the Act had applied beforehand, i.e., and he listed with the trainmen and so on.

And all the other discussion that — that the — the amendment was only to have a limited effect, I think when they came to putting in this language and referring to the words of this Court in its interpretation of the extent of the commerce power, commerce, I think that Senator Austin was simply out of an abundance of caution wanted to be sure that nothing that they put into this amendment might be interpreted by this Court as still too broad.

And therefore, that he put in the closely and substantially and directly affecting knowing that this Court had recently said well, were something directly or closely and substantially affects commerce, why then Congress has the power to regulate it.

Felix Frankfurter:

Mr. Voorhees, this (Inaudible) difficult, not trying to be — trying to be clear about something (Inaudible) very clear, namely, what Senator Austin was worried about, he was worried about the scope that he gives affecting commerce in relation to intrastate conduct?

Theodore Voorhees:

Exactly.

Felix Frankfurter:

And he drew on the Chief Justice, purely the thing is — is associated with (Inaudible) labor cases to indicate that Congress had the power to cover even intrastate conduct if and when that is so closely related, et cetera.

Theodore Voorhees:

No (Voice Overlap) —

Felix Frankfurter:

In other words, he was dealing with the Supreme Court’s doctrine.

Theodore Voorhees:

Exactly.

Felix Frankfurter:

The thing which is — in separation or an isolation of intrastate activity and yet because of their interrelationship are swept under the commerce clause, that’s what he was talking about.

Theodore Voorhees:

Exactly, sir.

And the mere fact that this amendment was broad enough so that it was going out to spill over and take out people that were injured in intrastate commerce, he wanted to make sure that — that the intent of Congress and to the exercise of its power would still be within proper limits, but he certainly was not indicating that — that Congress was trying to reach out and bring in people who — who occupied any type of position or — or regardless of whether or not they have any relationships of transportation.

I think if Your Honors will look at the — at the legislative history closely, you’ll see that Congress was only concerned with transportation, the transportation industry.

Felix Frankfurter:

Well, it — and one other thing because the National Labor Relations Act contrary to what they’ve stated earlier did not contain this clause.

Theodore Voorhees:

Certainly not.

Felix Frankfurter:

It merely use the phrase affecting commerce act in making it apply to intrastate transaction.

Felix Frankfurter:

The Chief Justice (Inaudible) for the Court drew on the three port doctrine of the interrelated intrastate-interstate conduct.

Theodore Voorhees:

Yes, sir.

William O. Douglas:

Yes, but the clause is a clause affecting commerce as construed by this Court, isn’t it?

Theodore Voorhees:

Yes, sir, it is.

But — but I — I set forth in my brief and — and the time being short I don’t want to labor it but during the — during — this was a period of great transition in the interpretation of Congress’ power under the commerce clause.

And — and Congress had learned by 1939 how to draw an act that would receive the approval of this Court.

And it did it by defining commerce and defining affecting commerce, it did it by a statement of policy at the beginning and it — or it did it by simply stating flatfootedly as it did in the Railroad Retirement Act that every employee was intended to be brought under it and they knew it would be all right.

Felix Frankfurter:

(Voice Overlap) — the problem with that phrase, this isn’t in this case.

Theodore Voorhees:

No, sir, —

Felix Frankfurter:

Because both of which is unexquisitely and I take it, you would exquisitely say the question of power —

Theodore Voorhees:

Is not here.

Felix Frankfurter:

— is not in the case.

Theodore Voorhees:

No, sir.

And as —

Felix Frankfurter:

You don’t (Inaudible)

Theodore Voorhees:

Plus — plus the fact that there’s not one word of indication in the legislative history or in the Act itself that Congress intended to go away outside of what it has regulated before and bring in all these additional employees.

Now, I — I wanted to —

William O. Douglas:

Your — your statement is in greeting commerce, you mean transport —

Theodore Voorhees:

Transportation.

William O. Douglas:

That’s the —

Theodore Voorhees:

I say this, sir.

That in 1908 — 1906 but particularly in 1908, Congress wanted to provide an Act which would give a real remedy for those who faced the hazards of the transportation industry, the railroad employees who were maimed and hurt because of the danger of working around the instrumentalities of transportation.

Following the passage of that Act, this Court did not say that we’ll only grant recovery to those who faced those hazards.

It couldn’t say that because it was too conscious of the fact that there were many, many employees who faced those hazards, who received severe injuries and yet who couldn’t recover because they went within the Act.

Nonetheless, in all the decisions prior to 1939, recovery was in fact limited to those who did face the hazards of the transportation industry.

File clerks did not recover.

People who were engaged in manufacturing, people who were engaged in new construction did not recover.

It was the railroad people who run the trains, who were near the tracks, who were switching and so on.

They were the ones who recovered.

In 1939, Congress attempted to bring all employees who faced the hazards of the transportation industry within this Act.

Theodore Voorhees:

And I submit to Your Honors that that is the test, it was the test prior to 1939 subject to the limitations of the moment of injury rule.

After 1939, all transportation employees are brought within the Act because all of them affect interstate transportation everytime you — you work along the — the tracks why you’re going affect it one way or another.

But the employees who worked in an office building, the employees who were engaged in manufacture, the employees who were engaged in new construction, away from the tracks, away from the hazards of the railroad industry, those are people who should be left to the remedies of the state law.

There’s no reason to bring them within the Federal Employers’ Liability Act.

They went within the ambit of it.

They weren’t contemplated.

First, originally because Congress saw they didn’t have the power to bring them in perhaps but later on when it knew it had — did have the power to bring them in, it didn’t do it.

Therefore, I submit that Ms. Reed and the plaintiffs in the other cases which Your Honor heard this morning ought to be relegated to the proper remedy.

And that Your Honor should not enlarge the coverage of this Act which Your Honors have characterized as cruel as (Inaudible) and as unsatisfactory in many ways.

If the — the coverage should not be expanded unless Congress itself expands this.

It’s much better for Congress to reexamine the whole thing and write a conversation on it.

There’s a proper remedy for all the employees in the railroad industry.