Gallivan v. Wark Co.
| Decision Date | 24 January 1927 |
| Docket Number | 269 |
| Citation | 136 A. 223,288 Pa. 443 |
| Parties | Gallivan, to use, v. Wark Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued December 1, 1926
Appeal, No. 269, Jan. T., 1926, by defendant, from judgment of C.P. No. 5, Phila. Co., June T., 1924, No. 13,366, on verdict for plaintiff, in case of John Gallivan, individually and to the use of Charles R. Gow Co., v. Wark Company. Affirmed.
Trespass for personal injuries. Before SMITH, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $35,000. Defendant appealed.
Error assigned was, inter alia, refusal of judgment for defendant n.o.v., quoting record.
The judgment of the court below is affirmed.
Ralph B. Evans, and F. B. Bracken, for appellant. -- There was no evidence of negligence: Fredericks v. Refining Co., 282 Pa. 8; Wagner v. Transit Co., 252 Pa. 354.
There were two possible causes of the accident, for one of which defendant was not responsible: Propert v. Flanagan, 277 Pa. 145; Biesecker v. R.R., 276 Pa. 87; King v. Darlington B. & M. Co., 284 Pa. 277; Gausman v Pearson, 284 Pa. 348.
Plaintiff's only right was to receive compensation under the Workmen's Compensation Law: Qualp v. Stewart, 266 Pa. 502; Bindbeutel v. Willcutt, 244 Mass. 195.
The verdict was excessive: Fredericks v. Refining Co., 282 Pa. 8; Gail v. Phila., 273 Pa. 275; Goldman v Mitchell, Fletcher & Co., 285 Pa. 116.
John J. McDevitt, Jr., for appellee. -- There was ample evidence of negligence: McGrath v. Sugar Co., 282 Pa. 265; Craig v. Mfg. Co., 272 Pa. 219.
Appellee's acceptance from his employer of compensation under the Workmen's Compensation Law did not bar his right of recovery against the general contractor (appellant) who had posted notice of rejection of that law: Gentile v. Ry., 274 Pa. 335; Mayhugh v. Teleph. Co., 265 Pa. 496; Wilson v. B. & I. Works, 85 Pa.Super. 537; Anderson v. Steel Co., 255 Pa. 33; McGrath v. Sugar Co., 282 Pa. 265; Turner v. Robbins, 276 Pa. 319; Craig v. Mfg. Co., 272 Pa. 219.
The parties cannot by agreement regulate the payment of compensation: Anderson v. Steel Co., 255 Pa. 33; Highlands v. Ins. Co., 203 Pa. 134; Illinois Auto. Ins. Ex. v. Braun, 280 Pa. 550.
The verdict was not excessive: Fredericks v. Refining Co., 282 Pa. 8.
Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, SADLER and SCHAFFER, JJ.
Plaintiff was employed by the Gow Company, which was doing the excavation work for a large building as a subcontractor under the Wark Company. He looked after the pumps, and his chief duty was to keep the waterjackets filled. Gasoline was used as the fuel and it was supplied from drums stored on the premises. In the early morning of June 25, 1924, while plaintiff was drawing gasoline into an open can from one of the drums, there was an explosion. Plaintiff was badly burned. The result of his injury is permanent incapacity to labor.
Plaintiff applied for and secured compensation, under the Workmen's Compensation Act of 1915, P.L. 736, as an employee of Gow Company. This action was instituted against the Wark Company, as an independent contractor, for negligent conduct of its work. Defendant offered several defenses which will be considered below in detail.
Appellant's principal contention is that there can be no recovery by an employee, who has received compensation under article III of the Workmen's Compensation Act, against a third person whom the act makes liable to him in the same manner and to the same extent as his actual employer. The question presented is important, and makes necessary a review of the act, together with the purpose of the legislature in adopting it.
Among the questions arising from the relation of master and servant, or employer and employee, is that of compensation for injuries to the latter, happening during the course of his employment. At common law, recovery was dependent on the negligence of the employer and the absence on the part of the employee of an assumption of risk and of contributory negligence; so also the negligence of a fellow servant would defeat the claim. These were the employer's common law defenses. For economic and social reasons, most if not all of the states and many nations have adopted some system of elective compensation to take care of injured employees in a material way.
In adopting such a system, our legislature considered of primary importance the subject of recovery of damages by action at common law, and applied thereto new rules created by the act. By so doing it defined the employer's liability differently from what had theretofore existed and the result of its work was to create new liabilities. If such liabilities were to be imposed upon the employer, since his old safeguards had been removed, a proper substitute must be given in return, to avoid the bar of the Constitution.
The legislature provided, in article II, section 201, that, as to all future actions to recover damages for personal injuries to an employee, in the course of employment, the common law defenses above mentioned should no longer be available. This section may be considered, inter alia, as a penalty for not accepting the legislative compensation or as an inducement to cause its acceptance. It is undoubtedly the strong feature of the act.
As a substitute for the defenses thus withdrawn from the employer and for the surrender of the right of action theretofore possessed by the employee, a schedule of moderate compensation, irrespective of negligence, was offered. If accepted the result is simple; all common law rights against the employer are superseded by the statutory compensation.
Section 302 permits the employer to refuse to accept article III by indicating that intention in the manner prescribed. The employer, as to liability, is, in that event, turned back to article II. The employee may then bring an action at law. The latter must prove negligence, but the scope of acts constituting negligence has been broadened by article II. By the same article the employer is shorn of his common law defenses. The damages recoverable in such case are those permissible at common law. Thus far, the act deals with the contractual relations of employer and employee as governed by article II and section 302 (a) of article III.
Section 203 of article II reads as follows: "An employer who permits the entry upon the premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor . . . shall be liable to such laborer or assistant in the same manner and to the same extent as his own employee." Appellant, as principal contractor, was placed in this class: Qualp v. Stewart, 266 Pa. 502.
By this section the legislature took hold of independent groups (employers on one hand and employees on the other) which had never borne the relation of employer and employee as to each other, and created that relation for the purposes of the act. A person thus termed employer does not pay, cannot discharge, in fact has absolutely no direct relation to such persons, nor they to him. This is the most drastic interference with individual rights to be found in the act. The relation is of purely statutory origin, and as it forces liability upon parties who are not in privity of contract, and causes one of them (hereinafter referred to as a statutory employer) to be liable for accidents for which he may in no way be responsible, its effect must receive close consideration.
The intent and purpose of the act is to secure compensation to employees who are injured while engaged at their regular occupations, as specified, without requiring negligence of the employer to appear. Section 203 has to do with different masters and different servants engaged in a common enterprise, whose combined efforts have one definite object or accomplishment in view. It cannot, however, be given effect beyond what is absolutely necessary to carry out the definitely expressed purpose of the legislature; it cannot be made to cover, by implication, situations not within the intent and scope of the Compensation Act.
The section applies to the principal contractor; the persons who are made his employees must be hired by one standing in contractual relation with him; they must be working on the premises doing something that is a part of the principal contractor's employment or contract. The section makes no effort to relieve the contractual employer, or the employer by hiring, but it adds to the principal contractor's general liability.
Section 302 (b) of article III reads as follows: "An employer who permits the entry upon premises . . . under his control, of a laborer . . . hired by an employee or contractor, for the performance . . . of the employer's regular business entrusted to that employee or contractor, shall be conclusively presumed to have agreed to pay to such laborer . . . compensation [under article III] . . . unless the employer shall post . . . a notice of his intention not to pay such compensation." As illustrated in the case of the contractual employer under 302 (a), the statutory employer may refuse, under section 302 (b), to pay the legislative elective compensation fixed under article III.
If under 302 (b), the statutory employer accepts article III and the employee does likewise, the effect is to relieve the subcontractor from liability for compensation under this article. "Where article III binds such [statutory] employer, and such laborer . . ., it shall not be in effect between the intermediate employer or contractor and such laborer . . . unless otherwise expressly agreed [between the statutory employer and the subcontractor]." We need not discuss the effect of payment of elective compensation by the statutory...
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