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May 11, 1954


The opinion of the court was delivered by: LEIBELL

This is an action to recover for the wrongful death of Peter J. Curran on October 15, 1948, as the result of an electric shock sustained in the course of his employment. At the time of his death decedent was employed by the defendant as a shift engineer and was licensed as such by the Federal Communications Commission. He was working at the defendant's radio station at Brentwood, Long Island, New York. The defendant, a Delaware corporation, duly licensed to do business in the State of New York, was engaged in the business of radio-telephone communications between the United States and foreign countries and was subject to the provisions of the Federal Communications Act of 1934.

Elaine Curran, the plaintiff herein, as widow of Peter J. Curran, who left no children him surviving, filed a claim against the defendant with the Workmen's Compensation Board of the State of New York, for benefits under the Workmen's Compensation Law of the State of New York, McK.Consol.Laws, c. 67. After a hearing held by that Board, which she attended, she was awarded, on March 8, 1949, compensation at the rate of $ 42 payable every two weeks; and the defendant, through its insurer, has paid and provided for the payment of the amount awarded, and has fully complied with the provisions of the award. These facts have been stipulated.

On August 26, 1949, this action was commenced, the plaintiff alleging that the defendant's negligence caused her husband's death and that the defendant violated the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. On April 30, 1953, the plaintiff filed an amended complaint alleging, in addition to the above, that the defendant violated the Federal Communications Act of 1934, Title 47 U.S.Code Annotated, § 151 et seq., in that the defendant 'caused, allowed and permitted certain work to be performed and equipment erected and steps taken at the order, direction and request of the defendant, which acts were in violation of 47 U.S.C.A., Sections 201 et seq.'; and further that 'the defendant violated various acts of the Labor Law of the State of New York [McK.Consol.Laws, c. 31] in so far as the decedent was required to work under such hazardous conditions as were in direct violation of the provisions of the said Labor Law'; and 'that all of these unlawful and wrongful acts of defendant, its agents, servants and employees caused or contributed to the death of the decedent by electrocution.'

 The defendant, in its answer to the original complaint, denied the material allegations thereof, and set up two complete defenses: -- First -- contributory negligence on the part of the decedent; Second -- that plaintiff's sole remedy was under the Workmen's Compensation Law of the State of New York. In its answer to the amended complaint the defendant added, as a third complete defense, that this Court has no jurisdiction of the subject matter, because the proceedings under the Workmen's Compensation Law are res judicata of the rights of the parties.

 Subsequently the plaintiff moved, in the motion part of this Court, to strike the defendant's second and third complete defenses, on the ground that they were insufficient in law. On December 8, 1953, Judge Murphy denied the motion without prejudice, adding:

'Since jurisdiction should first be determined and since the defendant has not seen fit to raise this question by motion, I think it appropriate that the entire matter, including the present motion, be left to the determination of the trial court.'

 Thereafter the case came on for trial before me, without a jury, and the plaintiff made a preliminary motion to strike the second and third complete defenses. The defendant cross moved for judgment dismissing the complaint for lack of jurisdiction, or in the alternative for a summary judgment in its favor. The parties later entered into a stipulation as to the proceedings taken under the New York Workmen's Compensation Law.

 The amended complaint alleges that by reason of the fact that the defendant was engaged in matters pertaining to interstate commerce and matters under Federal jurisdiction, and the fact that the amount sued for is in excess of $ 3,000, this Court has jurisdiction of the action. Diversity of citizenship is not alleged, although it exists in fact. The source of this Court's jurisdiction, on the pleadings, would be either 28 U.S.C.A. § 1331 or 28 U.S.C.A. § 1337. *fn1"

 In determining whether this action arises under 'the Constitution, laws or treaties of the United States' we must apply the tests discussed in Gully v. First Nat. Bank, 299 U.S. 109, at page 112, 57 S. Ct. 96, 81 L. Ed. 70. Is a right or immunity created by the Constitution or laws of the United States an essential element of plaintiff's cause of action? Or, as stated in Hull v. Burr, 234 U.S. 712, at page 720, 34 S. Ct. 892, at page 895, 58 L. Ed. 1587: Does this suit 'really and substantially involve a dispute or controversy respecting the validity, construction, or effect of some law of the United States, upon the determination of which the result depends'?

 The jurisdictional problem seems to have troubled the plaintiff in this litigation. In the original complaint she relied upon the Federal Employer's Liability Act, as the law which conferred Federal jurisdiction of her action. The amended complaint seeks to bring the action within the scope of Federal jurisdiction by pleading, in addition to the Federal Employers' Liability Act, violations of the Communications Act of 1934. T. 47 U.S.C.A. § 151 et seq.

 The Federal Employers' Liability Act has no application to this action. Section 51 of Title 45 U.S.C.A. applies to 'every common carrier by railroad' and those words 'mean one who operates a railroad as a means of carrying for the public -- that is to say, a railroad company acting as a common carrier'. Wells Fargo & Co. v. Taylor, 1920, 254 U.S. 175, 187, 41 S. Ct. 93, 98, 65 L. Ed. 205. The 1939 amendment of Section 51, which added a paragraph to the section referring to 'any employee of a carrier,' cannot be construed as broadening the specific words 'common carrier by railroad', which appear in the first paragraph of the section, so as to include other types of common carriers, such as carriers of messages. The amendment did not change the description of an 'employer' liable under the Act; it merely enlarged the scope of the word 'employee', to include certain employees of railroads not theretofore covered. Desper v. Starved Rock Ferry Co., 342 U.S. 187, at page 190, 72 S. Ct. 216, 96 L. Ed. 205. See also, Jones v. New York Central R. Co., 6 Cir., 182 F.2d 326; Latsko v. National Carloading Corp., 6 Cir., 1951, 192 F.2d 905. The plaintiff in this action has no claim cognizable under the Federal Employers' Liability Act. The next question is this -- Has the plaintiff a claim cognizable under Sections 206 and 207 of the Communications Act of 1934?

 The defendant, admittedly, was engaged in the business of radio-telephone communications between the United States of America and foreign countries and the decedent was its employee. Its operations came within the provisions of 47 U.S.C.A. Chapter 5, Communications Act of 1934, which applies to 'all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided; * * *'. 47 U.S.C.A. § 152. The defendant was a 'common carrier' of interstate or foreign communications by wire, or radio, within the definition of a 'common carrier' contained in Section 153(h) of the Communications Act, which states:

'(h) 'Common carrier' or 'carrier'
'(h) 'Common carrier' or 'carrier' means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.'

 Under the commerce clause of the Constitution, Art. 1, § 8, Congress is empowered 'To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes'. Pursuant to the grant of power Congress may regulate the obligations of common carriers and the rights of their employees, arising out of injuries sustained by the latter where both are engaged in interstate commerce; as it did in the Federal Employers' Liability Act. When Congress legislates upon those subjects all state laws, covering the same field, are necessarily superseded, because of the supremacy of the national authority in that field. New York Central R. Co. v. Winfield, 1917, 244 U.S. 147, 37 S. Ct. 546, 61 L. Ed. 1045.

 Under its power to regulate commerce Congress enacted the Communications Act of 1934. Section 151 of Title 47, United States Code, sets forth the purposes of the Communications Act of 1934, as follows:

' § 151. Purposes of Act; Federal Communications Commission created.
'For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the 'Federal Communications Commission' which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.'

 The language of this section indicates an intent to regulate the business of the interstate and foreign transmission of messages, both as to those engaged in the business, and also as to their customers' rights as against them. But there does not appear to be any intent to create any new substantive rights for employees injured in the course of their employment in that business. The Act established 'a comprehensive system for the regulation of communication by wire and radio.' Scripps-Howard Radio v. Federal Communications Commission, 316 U.S. 4, at page 6, 62 S. Ct. 875, 878, 86 L. Ed. 1229. 'The purpose of the Act was to protect the public interest in communications.' Same case, 316 U.S. at page 14, 62 S. Ct. at page 882. Under Section 152(b)(1) the Commission is specifically denied jurisdiction over 'charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service of any carrier,' with certain exceptions. This section is referred to as indicating, by contradistinction, the categories over which the Commission has jurisdiction in interstate communications.

 Plaintiff's attorneys rely on 47 U.S.C.A. §§ 206 and 207 to sustain their contention that plaintiff has a cause of action cognizable under the Communications Act. Those sections provide:

' § 206. Carriers' liability for damages
'In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.'
' § 207. Recovery of damages
'Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of ...

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