Fid. & Cas. Co. v. Cedar Valley Elec. Co.

• Decision Date: 24 November 1919
• Docket Number: No. 32580.,32580.
• Parties: FIDELITY & CASUALTY CO. v. CEDAR VALLEY ELECTRIC CO.
• Court: Iowa Supreme Court

187 Iowa 1014

174 N.W. 709

FIDELITY & CASUALTY CO.

v.CEDAR VALLEY ELECTRIC CO.

No. 32580.

Supreme Court of Iowa.

Nov. 24, 1919.

Appeal from District Court, Floyd County; C. H. Kelley, Judge.

Action to recover indemnity paid by plaintiff, under the terms of a policy of insurance, issued to the People's Mutual Telephone Company, on account of the death of an employé. The facts are fully stated in the opinion. There was a verdict and judgment in favor of the plaintiff in the court below, and defendant appeals. Affirmed.Edwards, Longley, Ransier & Smith, of Waterloo, for appellant.

Tourtellot, Donnelly & Swab, of Cedar Rapids, and J. C. Campbell, of Charles City, for appellee.

STEVENS, J.

Leland Esslinger, an employé of the People's Mutual Telephone Company, while engaged in attaching a service wire to a glass insulator on a telephone pole, caused the wire to come in contact with a high-tension wire of the defendant carrying an electric current of 2,000 volts, resulting in his instant death. The poles supporting the telephone wires extended about 17 1/2 feet above the surface of the ground. The poles of defendant light company on which there was a crossbeam about 14 inches below the top, to which the high-tension wires were attached, were set substantially in line with the telephone poles, but were several feet higher. The poles of the telephone company were not set perpendicular, but slanted in such a way as to bring the top thereof approximately under the end of the crossbeam on the electric light poles. As we understand the record, there was but one telephone wire, and that it was attached to a glass insulator on an arm extending from the telephone pole. Some time before the accident to Esslinger occurred, the telephone company straightened the pole on which he was working at the time he was killed, thereby bringing the telephone wire within about 18 inches of defendant's high-tension wires.

Plaintiff in its petition alleged that the defendant was negligent in placing high-tension electric transmission lines along the highway without sufficient or adequate poles to conduct the current at a safe height above the wires of the telephone company, and in placing the same in dangerous proximity thereto, and in failing to equip the same with proper insulation or guard nets.

The defendant for answer admitted that it was the owner of the high-tension line; that at the time of his death Esslinger was an employé of the telephone company; denied all of the allegations of negligence; and averred that the death of Esslinger was due, in whole or in part, to his contributory negligence, or the negligence of the telephone company.

Plaintiff bases its right to a cause of action against the defendant upon the provisions of subdivision (b) of section 2477m6 of the 1913 Supplement to the Code, and whatever right it has to maintain this action exists because of the provisions of this section which are as follows:

“Where an employé coming under the provisions of this act receives an injury for which compensation is payable under this act and which injury was caused under circumstances creating a legal liability in some person other than the employer, to pay damages in respect thereof:

(a) The employé or beneficiary may take proceedings both against that person to recover damages and against the employer for compensation, but the amount of the compensation to which he is entitled under this act shall be reduced by the amount of damages recovered.

(b) If the employé or beneficiary in such case recovers compensation under this act, the employer by whom the compensation was paid or the party who has been called upon to pay the compensation, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the employé to recover therefor.”

The case was tried in the court below, and is argued in this court, upon the theory that the plaintiff comes within the class entitled to be subrogated to the rights of the injured employé, or his beneficiary, under subdivision (b) of section 2477m6, supra, and no question involving the construction of this statute, so far as this question is concerned, is involved upon this appeal.

[1] Counsel for appellant complains of that portion of instruction 3 in which the court stated to the jury that plaintiff's rights to recover “are precisely the same as the rights of said Leland Esslinger as against the defendant electric company, no more and no less,” and also of its refusal to give the following requested instructions:

“That the plaintiff insurance company only obtained through its payment of the indemnity under its insurance policy to the People's Mutual Telephone Company such rights as the People's Mutual Telephone Company would have had to collect if it had paid such indemnity, and that, if the fault of the People's Mutual Telephone Company contributed to cause the injury, it could not recover in this case and neither could the plaintiff insurance company.

That if the People's Mutual Telephone Company, through its employés, moved its lines as then existing into the zone of danger which might arise through proximity to the wires of the defendant electric company, if such removal amounted to negligence on the part of the People's Mutual Telephone Company, and such negligence contributed to cause the injury, then neither the People's Mutual Telephone Company could have recovered, nor the plaintiff insurance company could not recover, in this case.”

Other instructions of similar import were requested by counsel for defendant and refused by the court. The negligence urged against the telephone company by defendant is that in straightening its poles it brought the telephone wire within 15 or 16 inches of defendant's high-tension wires, and thereby exposed its employés to danger, producing the conditions which caused the death of Esslinger.

The right of an injured employé, or his beneficiares, to compensation under the statute, does not depend upon the negligence of his employer. If the injury arose out of and in the course of his employment, the right to compensation exists, without reference to whether his employer was negligent or not.

Subdivision (a) of section 2477m6 gives the injured employé a right to proceed against a “person other than the employé” who is legally liable for damages on account of injuries suffered, and also against the employer for compensation. The statute leaves the question of the legal liability of “some person other than the employer” to be determined according to the rules of law applicable to the circumstances surrounding the injury. If the death of Esslinger was the direct and proximate result of the negligence of the defendant, a cause of action arose in favor of his estate unaffected by any negligence upon the part of his employer contributing thereto.

Subdivision (b) of section 2477m6 provides that the party who has been called upon to pay the compensation, to which the employé or his beneficiary is entitled under the provisions of the Workmen's Compensation Act, shall be entitled to indemnity from the person liable to pay damages for his death or injuries, and shall be subrogated to the rights of the employé or injured person to recover therefor. The indemnity paid by plaintiff was that required by the terms of its contract with Esslinger's employer. The right of an injured employé to recover damages from a “person other than the employer,” under the provisions of the above statute, is not...