(146 N.E.)

in the indictment that the appellant did steal, I paid at maturity, appellee having refused to take, and carry away the personal property pay the same because the automobile was therein described. There is a total failure of not as represented; and on March 4, 1921, evidence as to the most essential element it was agreed between the parties that the of the crime of larceny. The verdict is not original contract be modified, in this, that sustained by sufficient evidence and same is the title to the automobile be at once transcontrary to law. ferred to appellee, and that the two notes which were past due be taken up in the following manner: First, appellee was to have credit on the notes for an amount equal to the sum of money he had paid out for repairs, and then the balance due on the notes, less the repair bills, which balance was $686.

The judgment is reversed, with instructions to sustain appellant's motion for a new trial.

FRANKLIN MOTOR CAR CO. v. HILKERT. 40, was to be paid appellant from the pro

(No. 12010.)

ceeds of a loan procured by appellee, who would secure the loan by a mortgage on the

(Appellate Court of Indiana, Division No. 1. automobile. In accordance with this arrangeFeb. 27, 1925.)

ment, appellee applied to, and was granted a 1. Fraud 35-One suffering injury may loan of $686.40 by, a loan agency, and with waive right to damages. this money and the credit given for the reOne suffering injury by fraud of another pair bills, appellee took up the past-due may waive right to damages.

2. Fraud 35-Purchaser of automobile entering into supplemental contract after discovery of fraud held to have waived right to

recover.

Where purchaser of secondhand automobile learned that it was manufactured in 1915, and not 1917 as represented, and expended $250 for repairs, but, notwithstanding his knowledge of such fraud, entered into supplemental contract whereby he took absolute title to car, mortgaged it as his own, and credited repair bills on amount he owed seller, held, that he waived all right to recover for fraud.

Appeal from Circuit Court, St. Joseph County; W. A. Funk, Judge.

Action by Thomas F. Hilkert against the Franklin Motor Car Company. Judgment for plaintiff, and defendant appeals. Reversed.

notes. The money borrowed of the loan agency was secured by a mortgage on the automobile, and was made payable in ten equal monthly installments. Following the supplemental agreement, eight of the monthly payments were made to the loan company.

On February 6, 1922, which was a little more than 18 months after the original contract was entered into by the parties, appellee commenced this action against appellant. The action is for damages alleged to have been suffered by appellee because of appellant's misrepresentations as to the age and condition of the automobile. The complaint is predicated upon the original agreement of August 4, 1920; made in the complaint to the modification which was made by the parties on March 4, 1921.

no reference is

To the complaint appellant filed an answer G. A. Farobaugh and Walter R. Arnold, in three paragraphs: (1) Denial; (2) comboth of South Bend, for appellant.

Parker, Crabill, Crumpacker & May, of South Bend, for appellee.

REMY, J. On August 4, 1920, appellee purchased of appellant a used automobile, title to remain in appellant until purchase price of $2,000 was fully paid. Pursuant to the agreement, the automobile was delivered to appellee, who in consideration paid $350 cash, turned over to appellant two used automobiles at an agreed valuation of $750, and gave his two promissory notes, one for $400, and one for $500, due respectively four and six months after date. The automobile purchased proved to be out of repair, and within a few weeks after its delivery appellee was compelled to expend more than $250 for repairs. While the repairs were being made, appellee discovered that the car was manufactured in 1915, and not in 1917 as stipulated in the sale contract. Neither of the two promissory notes given by appellee was

promise and settlement; and (3) novation. On the trial, the evidence without conflict showed the above facts. Conflicting testimony was as to matters not material to a decision of the question involved in this appeal. There was verdict and judgment for appellee.

It is urged by appellant that appellee, by joining in the supplemental agreement of March 4, 1921, waived any right of action he may have had because of appellant's fraud in procuring the original contract of August 4, 1920. We concur in this view.

It appears from the evidence that very soon after appellee purchased the automobile, he learned that it was not manufactured in 1917, as represented, but in 1915. He also discovered that it was greatly in need of repairs, and not as represented. In fact, the condition of the car was such that the necessary repairs before the two notes giv. en in payment fell due cost him more than $250. When he made the supplemental con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tract, on March 4, 1921, he was fully in-, him by the seller, executes a note for the formed as to the fraud, if any, that had been a supplemental contract reducing the amount perpetrated by appellant when he entered into the original contract. Nevertheless, with this knowledge, he agreed to the new arrangement by which he took absolute title to the car, mortgaged the same as his own, and accepted credit on the amount he owed appellant under the original contract, for the repair bills he had previously paid. Not only that, but he proceeded under the modified contract for some time before this action was begun.

(146 N.E.)

Appeal from Superior Court, Marion Coun

2. Master and servant 354-Employer of failed to point to any evidence to sustain findcontractor held "some person other than em- ing of contributory negligence, and instructions ployer" as to injured employé of contractor.considered as whole in connection with eviOne contracting for performance of work dence showed that defendant was not harmed. by contractor, as to such contractor's employé, is "some person other than employer," within Workmen's Compensation Act, § 13, as amend- ty; Clinton H. Givan, Judge. ed by Acts 1919, c. 57, providing that, where injury is sustained under circumstances creating liability in some other person than employer, injured employé may proceed at law against such other person.

3. Master and servant 354-Provision of Compensation Act excluding rights at common law inapplicable as between employé and third person.

Workmen's Compensation Act, § 6, providing that rights granted therein to an employé on account of injury exclude all rights at common law, has to do only with employé and his employer, and does not affect any other party. 4. Master and servant 351-Right of employé to collect compensation from employer and third party failing to exact required certificate not exclusive.

Action by Charles Waltz against the Artificial Ice & Cold Storage Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 138 N. E. 94.

Fesler, Elam & Young, and Irving M. Fauvre, all of Indianapolis, for appellant. White, Wright & McKay, of Indianapolis, for appellee.

MCMAHAN, J. Appellee recovered judg. ment against appellant on account of injuries received through the negligence of appellant. The complaint is in two paragraphs, each of which alleges that appellant, being the owner of an ice manufacturing plant in which there was an elevator or lift, contracted with Hugo Wuelfing to make certain repairs to the shaft through which such elevator was run and operated; that appellee,

The right of an injured employé to proceed under Workmen's Compensation Act, § 14, as amended by Acts 1919, c. 57, to collect compensation from his employer, and the party failing to exact certificate therein mentioned, is not ex-being in the employ of Wuelfing, was by the

clusive.

5. Master and servant

354-Employer's failure to exact statutory certificate from contractor, held not to preclude contractor's employé from prosecuting action at law against employer of contractor.

latter instructed to go to appellant's plant for the purpose of making such repairs; that when he reached appellant's plant appellant told him what to do, after which he started to erect the necessary scaffolding, Where one contracting for performance of when appellant instructed him not to erect work failed to exact from contractor certificate a scaffold, as that would interfere with the from Industrial Board as required by Work-running of the elevator, but to do his work men's Compensation Act, § 14, as amended by from the top of the elevator, and that one of Acts 1919, c. 57, such failure did not prevent appellant's servants would operate the elevaemployé of contractor who was injured while tor for that purpose, and that, while appellee performing such work from prosecuting an action at law for damages against such third was making the repairs, he was injured by party, as provided for in section 13. reason of the negligence of appellant.

6. Negligence 121 (2)-Doctrine of res ipsa loquitur held applicable to injury from falling elevator.

Where elevator on which plaintiff was injured was instrumentality furnished by defendant for use of plaintiff, and under defendant's 'control, and it was shown that elevator fell because chain broke, but evidence was conflicting as to cause of chain breaking, and strength of chain was not shown, nor was chain examined, held that doctrine of res ipsa loquitur applied, and burden was on defendant to explain cause of elevator's fall.

A demurrer to each paragraph of complaint being overruled, appellant filed answer in two paragraphs, the first being a general denial. The second alleges that appellant did not exact from the contractor, Wuelfing, a certificate from the Industrial Board showing that such contractor had complied with section 68 of the Workmen's Compensation Act (Laws 1915, c. 106, as amended by Laws 1919, c. 57); that appellee as employé of the contractor had given no notice to his employer nor to appellant that he was not working under the Compensation Act; that in fact appellee, his employer, Wuelfing, and appellant at the time of the accident were all working under and subject to the provisions of the Workmen's Compensation Act; that the rights of An instruction requiring finding for plain- all the parties were covered and determined tiff if certain facts proven, but omitting ques- by that act; that appellee had no right to tion of plaintiff's contributory negligence, held not reversible error, where other instructions maintain any action on account of his injury told jury that there could be no recovery if except before the Industrial Board for complaintiff was contributorily negligent, defendant pensation, and that the court had no juris

7. Trial 296 (4, 5)-Failure to include question of plaintiff's contributory negligence in instruction held not reversible error, In view, of other instructions and of defendant's failure to show contributory negligence.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

diction of the matters alleged in the com- of the work covered by such contract. plaint.

A demurrer having been sustained to the second paragraph of answer, the cause was tried by a jury, and resulted in a verdict and judgment for appellee.

Appellant in the memorandum attached to its demurrer calls attention to section 6 of the Workmen's Compensation Act (Acts 1915, p. 393). and sections 13 and 14 as amended in 1919 (Acts 1919, p. 159), and says that the jurisdiction of the subject-matter of the complaint is in the Industrial Board and not in the court. This contention is based on the theory that section 6 of the act excludes all common-law rights and remedies; that the only remedy appellee had in so far as appellant is concerned was to proceed under said section 14 and file his application with the Industrial Board for compensation, and that the provision in section 14, concerning the failure of the person having the work done to exact the certificate from the contractor, must be held to exclude the person so failing to exact such certificate from liability to actions at common law for damages, the same as the contractor is exempted from liability at common law. Said sections read as follows:

"6. The rights and remedies herein granted to an employee subject to this act on account

of personal injury or death by accident shall exclude all other rights and remedies of such employé, his personal representatives, depend

ents or next of kin, at common law on account of such injury or death."

"13. Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages * * thereto, the injured employé, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to recover damages or may proceed against both the employer and such other person at the same time, but he or they shall not collect from both; and, if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of the injured employé or, in the case of death, in the name of his dependents from the other person in whom legal liability for damages exists, the compensation paid or payable to the insured employé or his dependents. [Our italics.]

That the state, any political division thereof, any municipal corporation, any corporation, partnership, person, principal contractor, intermediate contractor or sub-contractor, paying compensation, physician's fees, hospital fees, nurse's charges, or burial expenses under the foregoing provisions of this section, may recover the amount paid from any person who, independently of such provisions, would have been liable for the payment thereof. Every claim, tion, shall be instituted against all parties liafiled with the Industrial Board under this secble for payment, and said board, in its award, shall fix the order in which said parties shall be exhausted, beginning with the immediate employer."

After the commencement of this action, appellant filed an application with the Industrial Board asking it to determine the compensation to which the appellee was entitled under the Workmen's Compensation Act on account of his injury, and to grant him such relief as he might be entitled under the law. In answer to a question based upon a certified statement of facts this court advised the Industrial Board that it did not have jurisdiction to hear said application and to make an award of compensation to appellee. In re Waltz (Ind. App.) 138 N. E. 94.

And as was there said:

"It is to be observed that section 13, supra,

relates to injuries or death for which compensation is payable under the act, and which shali have been sustained under circumstances creating in some persons other than the employer a legal liability for 'damages,' while said section 14 creates only a secondary liability for 'compensation,' on the part of the person contracting for the performance of any work without exacting from the contractor a certificate from the Industrial Board. This last

section has no bearing on the question of damages and creates no liability on the part of any one for damages. It is limited to compensation. The only effect of a failure to exact the certificate referred to is to make the party so failing liable to the same extent as the contractor for compensation, physician's fees, hospital fees, nurse's charges and burial expenses on account of injury or death of any employee of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract.'"

[1] Appellee was not an employé of appellant. He was an employé of Hugo Wuelfing. There is no allegation in the complaint that either appellee or his employer was Working under the Compensation Act. Assuming they were both subject to the act, appellee could under the facts alleged in the answer have filed a claim with the Industrial Board against appellant, but said section 14 required that such claim "shall be instituted against all parties liable for

"14. The state, any political division thereof, any municipal corporation, any corporation, partnership or person, contracting for the performance of any work without exacting from the contractor a certificate from the Industrial Board showing that such contractor has complied with section 68 of this act, shall be liable to the same extent as the contractor for compensation, physician's fees, hospital fees, nurse's charges, and burial expenses on account of the injury or death of any employé payment." The only effect of a failure of a of such contractor, due to an accident arising person contracting for the performance of

(146 N.E.)

"It did not take away from the employé the common-law liability to him of a third person but expressly preserved the right to proceed against such third person as well as the employer, and such right was in no way limited, though if there was a recovery of damages the employer was entitled to indemnity out of

ate a secondary liability for compensation [ preserves the right of the employé to proon the part of the person so failing. This ceed against both. Houlihan v. Sulzberger section does not change or affect the lia- & Sons, 282 Ill. 76, 118 N. E. 429. In that bility of the immediate employer and his case the court, in speaking of a similar insurance carrier. They remain primarily statute, said: liable for compensation, physician's fees, etc., and the employé is required to exhaust them before he can collect anything from the person for whom the work is being done. But, as was held by the Supreme Court in Employers' L. Assur. Co. v. Indianapolis & C. Traction Co., 144 N. E. 615, section 13, supra, authorized "the employer" when he has paid or become legally bound to pay compensation to bring an action in his own name to collect from a person who negligently injured his employé, “the indemnity paid or payable to the injured employé."

Said section 13 not only authorized the employer of the injured workman to prosecute an action against the negligent third party for “the compensation paid or payable to the injured employé," but it also provides that the injured employé at his option may "claim compensation from the employer or proceed at law against such other person to recover damages or may proceed against both the employer and such other person at the same time." The only limitation is that the injured employé cannot collect compensation from his employer and also collect damages from the third party.

[2] The words "some other person than the employer," as used in section 13, should be given their plain and usual meaning. As to Mr. Waltz, appellant was a person other than his employer. Webster v. Stewart, 210| Mich. 13, 177 N. W. 230; Churchill v. Stephens, 91 N. J. Law, 195, 102 A. 657.

them."

As was said in Goldsmith v. Payne, 300 Ill. 119, 133 N. E. 52, where the court, speaking of a section of the Compensation Act of that state (Hurd's Rev. St. 1917, c. 48, §§ 126– 1521), which was in substance the same as section 6 of our act, said:

"These provisions apply only to the right of the employé against his employer and have no reference to the liability of third persons causing injury to the employé."

A new compensation law was enacted in Illinois in 1913 (Laws 1913, p. 335), section 29, of which took away the right of an injured employé to prosecute a common-law action for damages, when the negligent third party, the employé, and his employer were all subject to the provisions of the act, but allowed the injured employé the right to prosecute his action for damages against the third person when the latter was not subject to the Compensation Act. Goldsmith v. Payne, supra; O'Brien v. Chicago City Ry. Co., 305 Ill. 244, 137 N. E. 214, 27 A. L. R.

479.

In Moeser v. Shunk, 116 Kan. 247, 226 P. 784, the court referring to a statute similar In Pittsburg, etc., R. Co. v. Parker, 191 to section 13, supra, held it was not intendInd. 686, 132 N. E. 372, 134 N. E. 890, 19 A. Led to be for the benefit of the third party, R. 751, Parker was an employé of a connor to relieve him from liability, and said: tractor who was building forms for a concrete bridge that was being constructed by "The statute does not attempt in any way to the railroad, and, being injured, as claimed, plové in respect to a person not his employer. determine the rights or liabilities of the emby reason of the negligence of the railroad It does not repeal the statute providing for company, commenced an action against the an action for wrongful death (R. S. 60-3203), latter for damages. The Industrial Board nor does it take away from an employé his had theretofore made an award of compen-common-law right of action for injury to the sation in favor of Parker against the em- person against one not his employer who by ployer, and Parker had accepted compensa- negligence has caused the death or injury.” tion under the award. The court correctly held that the employé, having collected compensation from his employer, could not thereafter prosecute an action against the railroad for damages. A recovery was denied for the reason that the statute expressly provides that the injured workman "shall not collect from both" the employer and the third party who caused the injury.

In Bristol Telephone Co. v. Weaver, 146. Tenn. 511, 243 S. W. 299, the court in construing a statute the same as ours said:

Compensation Act is to control and regulate "The purpose and effect of our Workmen's the relations between an employer and his employés. As between them the remedies there provided are exclusive when both are under the act at the time of the accident. The act does not attempt in any way to abridge the remedies which any employé of one person may which such third person commits against him.” have at law against a third person for a tort

Sections 6 and 13 must be construed together, and, notwithstanding the provisions of section 6, section 13 recognized that an injury may be caused under such circumstances as will create a legal liability in After referring to section 14 of the act of some person other than the employer and that state (Laws 1919, c. 123), which is the