Pittsburgh Plate Glass Co. v. Carey

• Decision Date: 29 July 1938
• Docket Number: No. 11179.,11179.
• Citation: 98 F.2d 533
• Parties: PITTSBURGH PLATE GLASS CO. v. CAREY.
• Court: U.S. Court of Appeals — Eighth Circuit

98 F.2d 533 (1938)

PITTSBURGH PLATE GLASS CO. v. CAREY.

No. 11179.

Circuit Court of Appeals, Eighth Circuit.

July 29, 1938.

George Hoke, of Minneapolis, Minn. (Gordon J. Mangan, John J. Stoller and Nathan A. Cobb, all of Minneapolis, Minn., on the brief), for appellant.

H. B. Sherwood, of St. Cloud, Minn. (C. E. Phillips and W. H. Stewart, both of St. Cloud, Minn., on the brief), for appellee.

Before STONE, SANBORN, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This case was a law action for personal injuries in which appellee recovered a verdict in the sum of $6,750. The plaintiff below was an electrician and an employee of the Granite City Electric Company of St. Cloud, Minnesota, which was engaged in installing the electric wiring in the Holt Motor Company Garage then being constructed in that city. Appellant had already installed the metal work around the windows on the street side of the building preparatory to the setting of the plate glass therein. A big crate of large plate glass had arrived on a truck in charge of appellant's employees. It appears that those employees required additional help in unloading this heavy glass, and one of them approached one Wiehoff, an electrician in the employ of the Granite City Company, who was at work in the rear of the building, and asked him, Wiehoff, "to give them a lift". He asked Wiehoff if Carey would help also, and said "he would pay us for our time". Carey was not present when this conversation took place. He and Wiehoff were the only employees of the Granite City Electric Company engaged in work on this job. Carey, who had gone back to his company's shop for materials, returned soon afterwards and Wiehoff informed him that the glass men "wanted a lift". Carey said "let them unload their own glass". Wiehoff said nothing to Carey about the offer to pay, but did say "it will just take a minute". Thereupon, both men walked over to the truck to furnish assistance.

In the unloading, the braces of the crate containing the glass gave way, and the crate with its content fell upon appellee, inflicting serious injuries. Both Carey and Wiehoff were employees of the same grade and class, and neither was clothed with authority over the other.

The Granite City Electric Company, the Pittsburgh Plate Glass Company, and the General Contractor for the erection of the Holt Motor Company Garage, were all subject to Part 2 of the Workmen's Compensation Act of Minnesota. Chapter 23-A General Statutes 1923, Mason's Minnesota Statutes 1927, Section 4261 et seq.

Section 4291 of the Act provides as follows:

"(1) Where an injury or death for which compensation is payable under part 2 of this act is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party also being subject to the provisions of part 2 of this Act, the employe, in case of injury, or his dependents in case of death may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under part 2 of this act, but not against both.

"If the employe in case of injury, or his dependents in case of death, shall bring an action for the recovery of damages against such party other than the employer, the amount thereof, manner in which, and the persons to whom the same are payable, shall be as provided for in part 2 of this act, and not otherwise; provided, that in no case shall such party be liable to any person other than the employe or his dependents for any damages growing out of or resulting from such injury or death".

Subject, however, to the following limitation contained therein: "The provisions of Subdivision 1 of this section shall apply only where the employer liable for compensation under part 2 of this act, and the other party or parties legally liable for damages were engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof, and not otherwise".

The attitude of the appellant in this litigation is best disclosed by the statement of its counsel admitting liability at the beginning of the trial:

"Mr. Hoke: If your Honor please, we intended to make the broad admission of liability under any and all circumstances, which leaves for dispute and for litigation the question as to whether the plaintiff's damages are to be ascertained in a proceeding before the Industrial Commission under the Workmen's Compensation Act, which would occur if it should be held that it was the liability of the Pittsburgh Plate Glass Company alone, — or, his damages to be ascertained pursuant to Section 4291 of the Workmen's Compensation Act, in the event that that section is found applicable, because he and our employees were at the time engaged in the furtherance of a common enterprise, or, in accomplishment of the same or related purpose, or — three — if it should be held that neither of those sections of the Workmen's Compensation Act apply, that his damages are to be assessed at common law; so our admission of liability is all comprehensive, and the only question is — how is that liability to be measured and ascertained."

At the conclusion of the evidence counsel for appellant interposed a motion to dismiss upon the ground that plaintiff's injuries arose out of and in the course of his employment by the defendant (appellant here) by reason whereof "plaintiff's remedy is solely under the so-called Workmen's Compensation Act of Minnesota, and it is to be sought in an appropriate proceeding in the Industrial Commission of the State of Minnesota". This motion having been denied, appellant then moved "that the court direct the jury to return a verdict for the plaintiff, finding the defendant liable to the plaintiff for damages resulting to him in consequence of the injuries sustained, such...