Chancellor v. Hines Motor Supply Co.

• Decision Date: 04 June 1937
• Docket Number: 7612.
• Citation: 69 P.2d 764,104 Mont. 603
• Parties: CHANCELLOR v. HINES MOTOR SUPPLY CO.
• Court: Montana Supreme Court

69 P.2d 764

104 Mont. 603

CHANCELLOR v. HINES MOTOR SUPPLY CO.

No. 7612.

Supreme Court of Montana

June 4, 1937

Appeal from Eight Judicial District Court, Cascade County; R. H Meigs, Judge.

Action by L. E. Chancellor against the Hines Motor Supply Company wherein defendant filed a cross-complaint.Judgment for plaintiff, and defendant appeals.

Affirmed.

Murch & Weurthner, of Great Falls, for appellant.

Weir Clift, Glover & Bennett, of Great Falls, for respondent.

MORRIS Justice.

This is an action for damages for personal injuries alleged to have been sustained by the plaintiff, an automobile mechanic, while in the employ of the defendant at its branch establishment in Great Falls, Montana.

The defendant is a Montana corporation operating a number of establishments in the state, handling automobile parts, with its principal place of business at Billings.In some of the branch houses a machine shop is conducted in connection with the other business, and in the Great Falls shop the plaintiff was employed to operate a certain power-driven brake drum lathe which "was designed and used for the purpose of rounding brake drums on automobile wheels."The lathe was driven by electric power.It is alleged, in substance, that the plaintiff was employed by the defendant to operate the brake drum lathe in defendant's Great Falls shop and to do other work upon and around the premises in the line of his employment, and that on October 17, 1934, while operating such lathe in the course of his employment, he leaned over to touch the cutter bit of the lathe with his finger to test its temperature.In performing this act his clothing on the left arm caught on the rough edge of the brake drum, pulled his left hand and arm into the revolving machine, and mangled and crushed his hand and fingers and tore the flesh from the bone, resulting in the loss of one finger near the second joint and the stiffening of another, and seriously impairing the use of the hand and causing extreme pain and suffering.It is further alleged that plaintiff continues to suffer as the result of such injuries.When caught in the machine, plaintiff cried for help, but the lathe was in an isolated part of the building and no one came to his aid.It is alleged that defendant failed to furnish plaintiff a safe place to work or safe tools and appliances to work with; that the stop switch of the motor being negligently placed it could not be reached by one in plaintiff's position when so caught; that plaintiff's efficiency in his trade as a skilled mechanic was greatly impaired by the injury to his fingers and hand; that prior to the accident plaintiff had commanded a salary ranging from $125 to $200 per month, whereas thereafter he was handicapped, was slow in his work, and by reason of the impaired usefulness of the hand it will be difficult for plaintiff to secure employment in competition with able-bodied men.It is further alleged that defendant had not elected to be bound by the provisions of the Workmen's Compensation Act(Rev.Codes 1935, § 2816 et seq.) and had failed to comply with any of the provisions thereof.

Defendant's demurrer to the complaint was overruled.The answer admits the corporate existence of the defendant, the employment of the plaintiff, its failure to elect to come under the provisions of the Workmen's Compensation Act, that the lathe was in the rear of its place of business but was installed there by the plaintiff, and denied all allegations of the complaint relating to the defendant's negligence.It alleges that plaintiff's injuries arose from his own willful and negligent act in placing his finger on the cutter bit; that the lathe is of standard make and the cut-off switch conveniently located; that if the plaintiff had cried out other employees were close by and would have gone to his aid, and that he, since the accident, has been employed at approximately his usual wage.

By separate defense and cross-complaint it is alleged, in substance, that the acts of the plaintiff in placing his finger upon the cutter bit was unnecessary and a willful and foolhardy act; that after the actdefendant agreed to continue plaintiff's wages during the period of recovery and to pay his medical and hospital expenses, which defendant has kept and performed, and in that behalf paid and expended $983.80, but that upon recovery the plaintiff refused to return to defendant's employ.All of the material allegations of the separate defense and cross-complaint were denied by the reply.When the matter came on for hearing, defendant's objection to the introduction of any evidence was overruled.

The cause was heard by the court sitting with a jury.Oral and documentary evidence was received; instructions were settled and given, and a verdict was returned in favor of the plaintiff, fixing his damages at $3,500 with costs, later reduced by the court to $3,000, and judgment was duly entered thereon.The matter comes here on appeal from the judgment.

Thirty-three specifications of error are assigned.We are of the opinion, however, that the merits of the controversy turn upon the question of defendant's negligence.

This action involves the construction of certain sections of the Workmen's Compensation Act that have not heretofore been construed by this court in matters such as those involved here, and for that reason we deem some preliminary consideration of the statutes essential.

Since the enactment of the Workmen's Compensation Act, section 2836,Revised Codes, a part of that act, deprives the employer engaged in a hazardous occupation or business who has not elected to come under the provisions of the act of the common-law defenses in a suit for damages for injury or death of an employee occurring in the course of employment.Section 2836 provides: "In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense:

"(1) That the employee was negligent, unless such negligence was wilful;

(2) That the injury was caused by the negligence of a fellow employee;

(3) That the employee had assumed the risks inherent in, incident to, or arising out of his employment, or arising from the failure of the employer to provide and maintain a reasonably safe place to work, or reasonably safe tools or appliances."

On first impression it would appear that section 2836, being part of a special act, applies only to those who elect to come under the act, but we find that section 2838 of the same act precludes any such construction, as this section specifically provides, among other things, that "any employer who elects to pay compensation as provided in this act shall not be subject to the provisions of section 2836."The title of the act eliminates "the first impression" mentioned above and expresses the intent to have the act apply in certain particulars to all employers engaged in the hazardous occupations.The title provides: "An Act providing for the protection and safety of workmen in all places of employment and for the inspection and regulation of places of employment in all inherently hazardous works and occupations; providing a schedule of compensation for injury to or death of workmen and methods of paying the same, and prescribing the liability of employers who do not elect to pay such compensation; establishing the industrial accident board, defining its powers and duties; and providing for a review of its awards."Laws 1915, c. 96.(Italics supplied.)

It appears that the peculiar wording of the two sections of the statute just referred to was constructed to avoid the compulsory features of the law, objectionable on constitutional grounds, and by depriving employers in the hazardous occupations of the old common-law defenses mentioned in section 2836 a strong incentive to elect to come under the act is provided.It will be noted that while this section protects the injured workman against the defenses mentioned, section 2838 gives similar protection to the employer who has elected to come under the act, by depriving his employee, who has not so elected, of the advantages of the provisions of section 2836.In other words, the employee who has elected not to come under the provisions of the act, suing for injuries sustained in his employment, is still subject to the old common-law defenses.

As stated above, this court has not heretofore had occasion to construe these provisions of the Workmen's Compensation Act on the questions involved here, but we find many decisions in other jurisdictions where similar provisions of compensation laws have been construed.A typical case is Schein v. Feder,154 Misc. 830, 278 N.Y.S. 653, 654 where it was said: "It was established by the evidence that at the time of the accident, the defendant had not complied with the Workmen's Compensation Law, in that he had failed to secure compensation for his employees.By section 11 of the Workmen's Compensation Law it is provided, in substance, that if the employer fails to secure the payment of compensation for his injured employees, an employee who is injured may maintain an action for damages on account of such injury, and, in such an action, it shall not be necessary to plead or prove freedom from contributory negligence, nor may the defendant plead as a defense that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.An injured employee, who avails himself of the right given to him by the statute in question, is nevertheless bound to prove that the injury for which he sues was caused by the employer's negligence."See, also, Roselip v. Great Atlantic & Pacific Tea Co.,272...