Claim of Otterstedt v. Lehigh & Hudson River Railway Co.

Per Curiam. An award has been made in this case because of the accidental death of Charles E. Otterstedt while in the employ of the appellant. The appellant was engaged in carrying on both interstate and intrastate commerce and it is argued on the appeal from the order affirming the award that it does not sufficiently appear that the deceased was not engaged in interstate commerce at the time of his death. *206 The unanimous affirmance of the findings made- by the state industrial board compels us to decide the question thus submitted by exclusive reference to the findings which were made. So far as this question is concerned these findings are that “ At the time Charles E. Otterstedt sustained the injuries, which resulted in his death, his construction gang was, and if he had worked on the day of the accident, he would have been engaged in new construction work for the Lehigh and Hudson River Railway Company, and was not engaged in interstate commerce.” The finding that the deceased “ would have been engaged in new construction work ” is indecisive of the present question of the character of the work in which deceased was engaged. What would be designated in general terms new construction work may or may not be of such a character as to make those engaged upon it employees in interstate commerce. We are, therefore, relegated to the bare finding that the deceased was not engaged in interstate commerce as a basis upon which .must rest, if upon anything, the award which has been made. Appellant contends that this is a mere conclusion of law and, therefore, cannot sustain the award. We differ from this view. The question whether an employee is or is not engaged in interstate commerce involves a consideration of acts which he is performing at the time and perhaps of surrounding conditions and the ultimate conclusion that he was or was not engaged in such commerce is a mixed finding of law and fact. But while we thus differ from the appellant and decide that this conclusion was sufficiently one of fact to sustain the award, we deem it proper to state that a more satisfactory review of such a case as this could be made by us if the findings stated with reasonable detail the facts which lead to and control the ultimate conclusion of the industrial board. The question of employment or not in interstate commerce is often a difficult one which involves *207 fine distinctions depending upon the particular facts of the employment. If, as in this case, we are confronted by an unanimous affirmance of the action of the industrial board it is impossible for us to consider anything except the findings which have been made and if those findings are confined to the general conclusion of fact as in this case it is impossible for us to adequately consider the case and parties are denied the review upon appeal to which they are fairly entitled. We feel that we should call attention to another feature of our decision. A question has arisen as to the application of section 74 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) to the procedure in this case and in the case of Matter of Sullivan v. Glens Falls Portland Cement Co., decided herewith. In both these cases awards were made. In this case the claim was dismissed and upon a rehearing an allowance was made. In the Sullivan case compensation was made in the first award and later the award was rescinded and the claim dismissed. The record does not show that any findings of fact or conclusions of law were made upon these first awards, or any objection taken to the subsequent hearings or modifications. The parties apparently consented to a reopening of the case and further consideration. For these reasons we do not pass upon the power of the board under section 74 to reconsider its action and come to an opposite conclusion after an award has once been made. The order appealed from should be affirmed, with costs. Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur. Order affirmed.