The opinion of the court was delivered by: FOLLMER
This action is brought to review a final decision of the Social Security Board that the deceased wage earner, Carl P. Martin, was neither fully nor currently insured at the time of his death, that accordingly the claimant, Hannah Martin, is not entitled to widow's current insurance benefits under Section 202(e) of the Social Security Act, 42 U.S.C.A. § 402(e), and Social Security Regulations No. 3 (20 C.F.R.Cum.Supp. 403), Sections 403.201(a), 403.202(a) and 403.406(a)(1), nor to child's insurance benefits on behalf of Joseph H. Martin and Patricia L. Martin under Section 202(c) of the Social Security Act, 42 U.S.C.A. § 402(c), and Social Security Board Regulations No. 3, Sections 403.201(a), 403.202(a), and 403.404(a)(1)(ii).
Section 205(g) of the Act provides for judicial review of the record made before the Board, and grants the District Court power 'to enter upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision to the Board, with or without remanding the cause for a rehearing,' subject to the condition that 'findings of the Board as to any fact, if supported by substantial evidence, shall be conclusive, * * * .' 42 U.S.C.A. § 405(g).
Both plaintiffs and defendant have presented motions for summary judgment under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A.following section 723c, each claiming to be entitled to prevail as a matter of law.
The facts are undisputed. The deceased wage earner had been employed as a 'shipper' by Western Stevedoring Company, Erie, Pennsylvania, hereinafter referred to as 'Western,' for a total of thirty quarters from 1937 through 1944, amply sufficient for recovery under the Social Security Act provided jurisdiction over this entire period as to such employment was in the Social Security Board and not in the Railroad Retirement Board.
Western is a Delaware corporation organized for the purpose of performing stevedoring services. It had entered into several contracts with Pennsylvania Railroad Company, hereinafter referred to as 'Pennsylvania' (clearly a 'carrier' subject to part 1 of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq.), to render loading and unloading services.
Western operated grain elevators for Pennsylvania at Girard Point in the City of Philadelphia, Pennsylvania; Canton in the City of Baltimore, Maryland; Greenville in the City of Jersey City, New Jersey, and at Erie, Pennsylvania. In a general way the operation was as follows: The grain was brought to the elevator by railroad cars or arrived by water on vessels. When brought in by rail the cars were placed by Pennsylvania at the elevator. Pennsylvania furnished to the operator, Western, information with respect to the grade and kind of grain as well as the consignee or owner and the services to be performed in the handling and storage by Western. Having furnished this information, the services of Pennsylvania with respect to the grain ceased until or unless the grain was loaded outbound into cars for movement by rail. In short, the services performed by Western with respect to the grain were those generally performed by a stevedoring company.
With the exception of a few small tools, all of the equipment, including pier facilities and ships' gear, used by Western was the property of Pennsylvania, a universal practice on the entire eastern seaboard; actually, it has been the long established practice in stevedoring work for the ship or its owners, or the railroad company, to furnish loading and unloading facilities.
Western was separately owned and staffed. None of its stock was at any time covered by this suit, owned by Pennsylvania or any of its officers, and none of the principal officers of Western were, during such period, also officers of Pennsylvania or any other common carrier
Records pertaining to receipts, shipments, and handlings of grain were made and kept by employees of Western. All of the work performed by Western was done solely by its employees. They were hired by and could only be discharged by Western. The manner of the rendition of their services was wholly under the supervision and direction of Western. They were paid wholly by Western and solely out of its funds.
To all intents and purposes they were employees of Western and of no one else
Stevedoring services were performed by Western for Pennsylvania at the various points hereinafter referred to under separate contracts for each location.
All of the contracts referred to were offered in evidence excepting that covering the operations at Erie under date of December 1, 1926
The original contracts were all similar to the one covering the operations at Canton in the City of Baltimore, Maryland, and dated May 14, 1927. This contract provided, inter alia, that Western agreed that it would operate such elevator, appurtenances and appliances in a prompt and workmanlike manner under the supervision and control of the General Agent and Superintendent of Pennsylvania, or its duly authorized agent.
It also provided for cancellation on ninety days notice in writing by either party and forthwith by Pennsylvania if and when, in the opinion of the General Agent and Superintendent, Western failed to perform any obligation cast upon it, or should fail to promptly and adequately maintain every part of the property therein included, or to operate said facilities in compliance with its requirements and should continue so to do for five days after notice in writing from the General Agent and Superintendent.
Various modifications were made to the original contracts affecting the operations in the different locations, which in my opinion were not controlling on the issue here involved,
until January 2, 1940, when all of the original and modifying contracts were cancelled and new contracts entered into, one for the operation of Pennsylvania's grain elevator at Girard Point in the City of Philadelphia, Pennsylvania; one for the operation of Pennsylvania's elevator and floating elevator at Canton in the City of Baltimore, Maryland; one for the operation of Pennsylvania's transfer elevator at Greenville in the City of Jersey City, New Jersey, and one for the operation of Pennsylvania's elevator at Erie, Pennsylvania. All of these contracts were, so far as material here, similar in their terms. All of them omitted the provisions of the contracts which they superseded giving the General Agent and Superintendent of Pennsylvania the right to supervise and control the work of Western, and giving Pennsylvania the right to terminate the agreement in case Western should, in the opinion of the said General Agent and Superintendent, fail to perform any provision of the agreement, and making the latter's decision with respect to the subject matter of the agreement or anything done or to be done in connection therewith conclusive upon Western. On the contrary, the new contracts provided that Western should be and remain an original, private and independent contractor thereunder, should furnish all labor and supervisory forces of every kind and description, should employ, pay from its own funds and discharge all persons engaged in the performance of the work to be done by Western thereunder.
As to the matter of termination, the new contracts . provided for arbitration of any unreconcilable controversy between the parties,
the right to either party to terminate at any time on ninety days written notice to the other party, and finally, in the event Western should for any reason whatever fail or refuse to perform any of the conditions and obligations cast upon it or to perform any of the work thereunder or any part thereof, then and in that event and because of the common carrier obligations of Pennsylvania the agreement might be forthwith terminated by Pennsylvania upon service upon Western of notice to that effect.
'On the basis of substantially the same evidence we previously held
that the contractor was subject to the control of the railroad company prior to January 2, 1940 but that subsequent to that date it has not been subject to the control of the railroad company. However, upon a reconsideration of the entire matter we have concluded that our previous decision with respect to the ...