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(146 N.E.) 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 IN. 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,

"It did not take away from the employé the etc., and the employé is required to exhaust common-law liability to him of a third person them before he can collect anything from but expressly preserved the right to proceed the person for whom the work is being done. against such third person as well as the emBut, as was held by the Supreme Court in ployer, and such right was in no way limited, Employers' L. Assur. Co. v. Indianapolis & though if there was a recovery of damages C. Traction Co., 144 N. E. 615, section 13, the employer was entitled to indemnity out of

them.” supra, authorized "the employer” when he has paid or become legally bound to pay As was said in Goldsmith v. Payne, 300 compensation to bring an action in his own Ill. 119, 133 N. E. 52, where the court, speakname to collect from a person who negligent- ing of a section of the Compensation Act of ly injured his employé, “the indemnity paid that state (Hurd's Rev. St. 1917, c. 48, 88 126– or payable to the injured employé.”

152i), which was in substance the same as Said section 13 not only authorized the section 6 of our act, said: employer of the injured workman to pros

"These provisions apply only to the right of ecute an action against the negligent third the employé against his employer and have no party for “the compensation paid or payable reference to the liability of third persons causto the injured employé," but it also provides ing injury to the employé." that the injured employé at his option may

A new compensation law was enacted in "claim compensation from the employer or proceed at law against such other person to Minois in 1913 (Laws 1913, p. 335), section recover damages or may proceed against | 29, of which took away the right of an inboth the employer and such other person at jured employé to prosecute a common-law the same time." The only limitation is that action for damages, when the negligent third the injured employé cannot collect compen- party, the employé, and his employer were all sation from his employer and also collect subject to the provisions of the act, but al

lowed the injured employé the right to prosdamages from the third party.

ecute his action for damages against the [2] The words “some other person than third person when the latter was not subthe employer," as used in section 13, should

ject to the Compensation Act. Goldsmith be given their plain and usual meaning. As

v. Payne, supra ; O'Brien v. Chicago City Ry. to Mr. Waltz, appellant was a person other Co., 305 in. 244, 137 N. E. 214, 27 A. L. R. than his employer. Webster v. Stewart, 210

479. Mich. 13, 177 N. W. 230; Churchill v. Ste

In Moeser v. Shunk, 116 Kan. 247, 226 P. phens, 91 N. J. Law, 195, 102 A. 657.

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. L. ed to be for the benefit of the third party, R. 751, Parker was an employé of a con

nor 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, ployé 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 In Bristol Telephone Co. v. Weaver, 146 held that the employé, having collected com- | Tenn. 511, 243 S. W. 299, the court in conpensation from his employer, could not there- struing a statute the same as ours said: after prosecute an action against the railroad for damages.

"The purpose and effect of our Workmen's A recovery was denied Compensation Act is to control and regulate for the reason that the statute expressly the relations between an employer and his emprovides that the injured workman “shall ployés. As between them the remedies there not collect from both" the employer and the provided are exclusive when both are under third party who caused the injury

the act at the time of the accident. The act Sections 6 and 13 must be construed to- does not attempt in any way to abridge the gether, and, notwithstanding the provisions remedies which any employé of one person may

have at law against a third person for a tort of section 6, section 13 recognized that an

which such third person commits against him." 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

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same as section 13 of our act, the court, con- tion shall pay to such employés any compensatinuing, said:

tion which would be payable to them under this "It will readily be seen that the provisions subscribers."

act if the independent or sub-contractors were of this section of the Workmen's Compensation Act are strictly for the benefit of the employer and employé. It in no way protects a third

[3] Under this section of the statute, person from suit whose negligence may have White, as one of “such employés" was enticontributed to the injury or death of the em- tled to compensation from the defendant who ployé. There is nothing in said section which was a "subscriber," and who as an employer abridges or limits the employé's common-law was primarily liable to the plaintiff for comright of action against such third person."

pensation. The statute practically compelled And, after calling attention to the Wash- the defendant to carry insurance for the ben. ington act which abolishes the right to pros- efit of the plaintiff, who was there held to be ecute civil actions for personal injuries, said: an employé of the Fuller Company, and, not “Our act nowhere undertakes to deny or of action at common law for damages, his

having given notice that he claimed his right abridge the employé's common-law right of action against a third person whose negligence only rights as against the defendant arose may be the sole or a contributing cause of his under the Compensation Act. White had the injury. There is therefore no reason why same rights as the immediate employés of the plaintiff cannot maintain her suit against de- defendant. There is nothing in the Workfendant."

men's Compensation Act of Indiana similar

to said section 17 of the Massachusetts act. City of Chicago v. Industrial Com., 295 111. 291, 129 N. E. 112, is not in point. Sec- White under the Massachusetts act was made tion 31 of the Compensation Act of Illinois white, as an employé, and the general con

an employé of the general contractor. Since requires employers to pay compensation to their own employés and to the employers of tractor, as employer, were both subject to

the Compensation Act, their rights and liauninsured contractors engaged by them.

bilities were measured by that act, which erWithout entering into any further review of the authorities, we hold there was no er- pressly provided that an employé of a “sub

scriber" waived his right of action at comror in overruling the đemurrer to the com

mon law to recover damages for personal inplaint. Appellant next contends that the court notice that he claimed such rights. No other

juries, unless he gave his employer written erred in sustaining the demurrer to the sec- conclusion could have been reached in that ond paragraph of answer. In support of this contention appellant calls attention to case than the one that was reached. As has

heretofore been shown, section 6 of our Comthe fact, as alleged in this answer, that ap- pensation Act has to do only with the empellee's employer and appellant were both

ployé and his employer. It does not affect carrying compensation insurance, were sub

any party other than the employé and his imject to the Compensation Act, and that ap- mediate employer. pellee was also subject to the act, and insists

Section 13 preserves the common-law rights that appellant was only liable for compensa- of an employé to prosecute an action for tion under section 14, supra,

damages against any one other than his emIn White v. George A. Fuller Co., 226 ployer who negligently injures him, and also Mass. 1, 114 N. E. 829, George A. Fuller gives the employer a right under certain conCompany had a contract for the erection ditions to prosecute an action against such of a building. White was an employé of a third party. subcontractor doing work under a contract

Section 14, as originally enacted, Acts with the Fuller Company, and, being injured 1915, p. 106, like section 17 of the Massachuthrough the negligence of one of the em-setts act, made a contractor liable for comployés of the Fuller Company, he brought pensation to any employé injured while in an action at law against the latter for dam- the employ of any one of his subcontractors ages.

The defendant carried compensation and engaged upon the subject-matter of the insurance, but the subcontractor by whom contract to the same extent as the immediate the plaintiff was employed was not insured.

employer. It, like the Massachusetts statPart 3, § 17, of the Massachusetts Work- ute, compelled every contractor to carry in. men's Compensation Act (Laws 1911, c. 751),

surance for the benefit of the employés of provides as follows:

the subcontractors, and, in case the contrac“If a subscriber enters into a contract, writ- tor was compelled to pay compensation un. ten or oral, with an independent contractor to der that section, he was given the right to do such subscriber's work, or if such a

recover the amount so paid from the immetractor enters into a contract with a subcon- diate employer of the injured employé. This tractor to do all or any part of the work comprised in such contract with the subscriber, section, however, was materially changed in and the association would, if such work were 1919 (Acts 1919, p. 159). As amended it does executed by employees immediately employed not require a person contracting for the perby the subscriber, be liable to pay compensation formance of work to carry insurance for the under this act to those employés, the associa- | benefit of an employé not his own; por does

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(146 N.E.) it require a contractor, contracting with a the shop of the Washer Company to do some subcontractor, to carry such insurance. Its work, and while doing the work was seriouspurpose is to relieve such persons from the ly injured by reason of the negligence of the necessity of carrying insurance by exacting Washer Company. Both the Andrae Comthe certificate showing that the person em- pany and the Washer Company were working ployed to do the work has complied with the under the Workmen's Compensation Act. law. Its purpose is to relieve such person The defendant there, as here, contended that, as well as a contractor from any possible since it and the plaintiff's employer were liability for compensation to the employés both subject to the provisions of the statute, of any one employed by them to do any work. it was not liable to an action at law. The It does not purport to take away the right of court in disposing of this contention said: an employé who has been injured through

"The claim cannot be sustained. the neglect of a person other than his em- pose and effect of the Workmen's Compensation ployer to maintain an action for damages-Act is to control and regulate the relations a right expressly preserved by section 13. It between an employer and his employés. does not, in any event, make an employé of between them the remedies there provided are a contractor or of a subcontractor an em-exclusive when both are under the act at the

The law does not atployé of any other person, as does the Mas- time of the accident. sachusetts act. The liability, if any, is vol- tempt in any way to abridge the remedies which

an employé of one person may have at law untarily assumed by the person who fails to against a third person for a tort which such exact: the certificate showing the employer third person commits against him," has complied with the law. This section applies alike to every person contracting for the except as provided in a particular section performance of work without reference to of the statute which was not applicable there whether the person, so contracting is, or is nor in the instant case. not, carrying compensation insurance and

See, also, Goldsmith v. Payne, supra; Silsubject to the Workmen's Compensation Act, via v. Scotten (Del. Sup.) 122 A. 513; Munwhile section 17 of the Massachusetts Act is caster v. Graham Ice Co., 103 Neb. 379, 172 limited to a "subscriber" who is carrying

N. W. 52. compensation insurance. It is very probable

[4] The right of an injured employé to prothat the amendment of section 14 of our act ceed under section 14 to collect compensation in 1919 was brought about by reason of the from his employer and the party failing to decision in White v. George A. Fuller Co., exact the certificate therein mentioned is not supra. As was said in King v. Viscoloid Co., exclusive. Ohio Traction v. Washington, 6 219 Mass. 420, 106 N. E. 988, Ann. Cas.

Ohio App. 273. 1916D, 1170:

[5] Nowhere in the statute is there any at

tempt to regulate or alter the rights and remAn existing common-law remedy is edies of an employé against a person not his not to be taken away by a statute unless, by di-employer. There is nothing in the statute to rect enactment or necessary implication."

indicate that the Legislature intended that It is not to be presumed that the Legisla- the right of an injured employé should be ture intended that a person by a deliberate affected by reason of the fact that the neglirefusal or failure to exact the certificate gent third party was also working under the from the Industrial Board could thereby de Compensation Act. The fact that appellant did stroy the right of an employé of another to not exact the certificate mentioned in section prosecute an action at law for damages, and 14 in no wise affected the right of appellee to in a case like the one now before us limit the prosecute his action at law for damages. injured employé to a claim for compensation There was no error in sustaining the deand require him to collect such compensa-murrer to the second paragraph of answer. tion from his employer or his insurance car- [6] Appellant next contends that there is no rier, and thus free the negligent third party evidence to sustain a finding that it was neg80 failing and refusing to exact the certificate ligent, and that the doctrine res ipsa loquitur from all liability, in case the compensation has no application to the situation here incould be collected from the immediate em- | volved, because appellee was not a passenger ployer or his insurance carrier. If a third on the elevator, but simply employed to work party could thus avoid an action at law for with certain materials being used in repairdamages, there would be no inducement for ing the elevator. Appellee was an employé exacting the certificate. Indeed there would of Mr. Wuelfing who had been employed by be an inducement not to exact the certificate. appellant to make certain repairs in its ice Decisions in states having a statute like Mas-house. Part of the repairs had been made, sachusetts, Illinois, Montana, and Washing- when appellee was directed to do some work ton are of no controlling influence in this on a hoist or elevator. This work constate on the question now under considera- sisted in taking out wooden guides and retion.

placing them with new material furnished In Smale v. Wrought Washer Mfg. Co., 160 by appellant. When appellee started to work Wig. 331, 151 N. W. 803, the plaintiff, an em- on the elevator appellant's yardman and manployé of the Andrae Company, was sent to ager showed him what he was to do, and

told him appellant would fix a scaffold on The chain in question had been used in which he could do the work, but later appel- hoisting the elevator for several weeks. The lee was informed he could not use a scaffold, loads of ice hoisted on the elevator during because it would interfere with getting in that time weighed about 1,600 pounds. The and out with ice, and that he would have to chain was not examined before or after the work off the top of the elevator. The eleva- accident to see whether there were any weak tor was raised by appellant's servant far or defective links. The evidence fails to enough to allow the removal of the guides show its strength other than it had been used in the lower 12 feet of the shaft. New guides as stated. Under the circumstances, we are were then placed in position, after which ap- of the opinion that the doctrine res ipsa logpellant lowered the elevator in order to re- uitur applies, and that the burden was on move the parts of the old guides immediate appellant to explain the cause of the elevaly above those which had been removed. One tor's fall. The testimony of appellee and of of appellant's servants was present and as the yardman did not coincide as to the mansisted appellee in the work. Just where this ner in which the elevator fell. The yardman servant was at the time of the accident is testified that the elevator started up and not disclosed. The inference is that he was struck the door above, and that this caused not in a position where he could control the the chain to break. Appellee says that the elevator. Appellee, according to his testi- elevator suddenly dropped, and says nothing mony, was standing on a piece of timber 3 or about it starting upward and striking the 4 feet above the floor of the elevator, and door before falling. The jury evidently acwhile he was prying the guides loose a chain cepted the testimony of appellee as being which was fastened to the timber on which correct, and refused to accept or believe the he was standing, and which was used to hoist testimony of appellant's witness as to how or raise the elevator, broke, causing the ele- the accident happened. vator to drop to the bottom of the shaft, and [7] Appellant says that the giving of inseverely injuring appellee. The elevator was struction 15 constitutes reversible error "beraised and lowered by compressed air, and cause it is a binding instruction to find for was operated by wires leading to levers. Ap- the aintiff if certain facts are proved, and pellant's manager or yardman was assisting the question of contributory negligence is appellee in doing the work. He had charge entirely left out." It is true nothing is said of the elevator, and raised or lowered it as in this instruction about contributory neg. was necessary. He testified that appellee ligence, but the court did in a number of inwas standing on the floor or platform of the structions tell the jury there could be no reelevator, and when one of the pieces of the covery if the evidence showed appellee was guides was pried loose it fell and struck the guilty of contributory negligence. Appellant wire leading to the lever that raised the ele- has failed to point to any evidence to sustain vator; that this started the elevator up; the a finding that appellee was guilty of con. elevator not being over far enough as it as tributory negligence. The instructions must cended, it caught against or under a door in be considered as a whole in connection with the icehouse, and that this prevented the ele- evidence, and when this is done it is clear vator going up any further, and caused the appellant was not harmed by the giving of chain to break.

this instruction. The elevator was an instrumentality fur Complaint is also made of instructions 17 nished by appellant for the use of appellee and 18 relating to the duty of a party to furin doing the work, and was under the control nish a safe place to work and the rule res of appellant. Appellant insists there is no ipsa loquitur. There was no error in the evidence showing it was guilty of any neg- giving of either of these instructions. The ligence, and that the burden was on appel- eighth instruction tendered by appellant was lee to prove that the elevator fell by reason to the effect that appellee's only remedy was of some negligence on the part of appellant. compensation under the Workmen's CompenAppellee contends that, since the elevator sation Act, and that he was not entitled to was furnished by appellant and was under recover anything in this case. There was its control, the doctrine of res ipsa loquitur error in refusing to give this instruction. applies.

Judgment affirmed.

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(146 N.E.)

Oxford, Ind., and had been so doing for many TOWN OF OXFORD V. SCOTT. (No. 12029.) years. Appellee's decedent, with his family, (Appellate Court of Indiana, Division No. 2. lived in said town in his own home, which Feb. 26, 1925.)

had been wired for lighting purposes before

decedent occupied it. In 1917, he erected a 1. Electricity Om 19(5)-Evidence held to sus- garage on his premises, in which he installed

tain finding of negligence, without invoking electric wires and fixtures, which were condoctrine of res ipsa loquitur.

nected with the municipal system through Evidence of city's careless and inefficient his dwelling. Appellant's lighting system, maintenance of high voltage electric wires in which was the only high-voltage electrical manner that dangerous current escaped to secondary wiring system, causing death of plain- system in the town, consisted of a generattiff's intestate, held sufficient to sustain finding ing plant, a primary circuit, running all over that negligence of defendant was proximate the town, carrying about 2,300 volts, the cause of injury, without invoking doctrine of street lighting or arc system, carrying about res ipsa loquitur, which was, nevertheless, ap- 500 or 600 volts, and several secondary cirplicable.

cuits, in which the current, by means of 2. Trial Cm 296(3)-Instruction as to degree transformers, was reduced to 110 volts. The

of care required of city, maintaining lighting transformer that reduced the current on the plant, held not reversible error.

secondary circuit that supplied the decedent Instruction that care required of municipal- Scott's residence was just across the street ity, maintaining and operating electric lighting from his residence. This circuit supplied plant, was “measured by the hazard and dan- about 15 customers, including decedent. It ger of the enterprise," though not commend

was not grounded. This would have had the able, held not reversible error, in view of remainder of instruction and obviously correct effect to take off any extra charge of elecresult reached in cause.

tricity. The wires were sagging, and in some

places in close proximity; at one place the Appeal from Circuit Court, Benton County ; arc and secondary wires were as close as 5 B. B. Berry, Judge.

inches. Action by Dora M. Scott, administratrix of

Appellant's superintendent testified that at the estate of Emory H. Scott, deceased, this place it was possible for the lines to against the Town of Oxford. Judgment for

come in contact, but not probable. There plaintiff, and defendant appeals. Affirmed.

were shade trees along the street, and these

wires in some places were fastened through Gaylord & Sells, of La Fayette, for appel- the trees. In numerous places the wires had lant.

burned into the trees. On the day of the Edmon G. Hall and Fraser & Isham, all of accident it had rained all day. Contact beFowler, for appellee.

tween the wires was more frequent on rainy

days. Fires were seen in trees just across NICHOLS, J. Action by appellee against the street from decedent's home, on the night appellant to recover damages for loss sus of the accident. It was common for the tained by her and her minor children by the street lights to go out, and for fuses to burn wrongful death of her husband and father of out. The insulation was off the wires in nuher children. To the complaint there was merous places. One superintendent had quit an answer in general denial. The cause was because the town would not furnish material submitted to the jury for trial, which re- with which to operate the plant. Another turned a general verdict in favor of appellee quit because he wanted to hire an extra man, for $6,000, upon which, after appellant's mo- experienced in operating a plant, and the tion for a new trial was overruled, judg- hoard refused to hire one. The superintendment was rendered.

ent in charge at the time of the accident The only error relied upon by appellant for was paid $330 per month, with which he reversal is the action of the court in over- hired two men, beside himself. They worked ruling its motion for a new trial, the rea- 10 hours a day. He had no men to put up sons for which were the insufficiency of the wires, and had to do the best he could. evidence to sustain the verdict, under which There were three inside switches or butreason appellant contends that there is no tons in decedent's garage. The fixtures evidence in the record tending to establish its therein were in the same condition on the negligence;' that the verdict is contrary to day of decedent's death that they had been law; and error of the court in giving each at all times since they were installed in 1917. of certain instructions, and in refusing to The wiring system in the garage was in good give each of others tendered by appellant. condition, and the wires were fully insulated,

The substantial facts as appear by the evi- but after the injury it was discovered that dence are that appellant, a municipal corpo- | the insulation surrounding the mechanism of ration, was on October 6, 1922, operating its the switches in the garage, where the shocks own electric lighting plant in the town of vrere received, had been burned through and

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

146 N.E.-53

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