Artificial Ice & Cold Storage Co. v. Waltz

• Decision Date: 19 February 1925
• Docket Number: No. 11844.,11844.
• Citation: 86 Ind.App. 534,146 N.E. 826
• Parties: ARTIFICIAL ICE & COLD STORAGE CO. v. WALTZ.
• Court: Indiana Appellate Court

86 Ind.App. 534

146 N.E. 826

ARTIFICIAL ICE & COLD STORAGE CO.

v.WALTZ.

No. 11844.^*

Appellate Court of Indiana, Division No. 2.

Feb. 19, 1925.

Appeal from Superior Court, Marion County; Clinton H. Givan, Judge.

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 judgment 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, being in the employ of Wuelfing, was by the 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, when appellant instructed him not to erect a scaffold, as that would interfere with the running of the elevator, but to do his work from the top of the elevator, and that one of appellant's servants would operate the elevator for that purpose, and that, while appellee was making the repairs, he was injured by reason of the negligence of appellant.

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 all the parties were covered and determined by that act; that appellee had no right to maintain any action on account of his injury except before the Industrial Board for compensation, and that the court had no jurisdictionof the matters alleged in the complaint.

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, dependents 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.]

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 of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract. *** 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, filed with the Industrial Board under this section, shall be instituted against all parties liable 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 shall 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 payment.” The only effect of a failure of a person contracting for the performance of any work, to exact the certificate is to createa secondary liability for compensation on the part of the person so failing. This section does not change or affect the liability of the immediate employer and his insurance carrier. They remain primarily 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....