Hagenback v. Randall

• Decision Date: 12 March 1920
• Docket Number: 10,674
• Citation: 126 N.E. 501,75 Ind.App. 417
• Parties: CARL HAGENBACK AND GREAT WALLACE SHOW COMPANY v. RANDALL
• Court: Indiana Appellate Court

126 N.E. 501

75 Ind.App. 417

CARL HAGENBACK AND GREAT WALLACE SHOW COMPANY v. RANDALL

No. 10,674

Court of Appeals of Indiana

March 12, 1920

Rehearing denied May 25, 1920. Transfer denied April 26 1921.

From the Industrial Board of Indiana.

Proceedings for compensation under the Workmen's Compensation Act by Harriett Randall against the Carl Hagenback and Great Wallace Show Company. From an award for applicant, the defendant appeals.

Affirmed.

Samuel D. Miller, Frank C. Dailey, William H. Thompson, S. S Miller, A. L. Rabb and Arthur McCart, for appellant.

Fred Barnett and A. M. Keene, for appellee.

OPINION

REMY, P. J.

The findings of the Industrial Board which are material to a proper determination of the questions presented on this appeal are: Appellant is an Indiana corporation with its principal offices in the city of Indianapolis, and at all times since its organization has been engaged in the business of conducting a show. Appellee is the sole dependent of Harry Vincent Randall who lost his life, while in the employ of appellant. Randall's contract of employment with appellant which was verbally made with appellant in West Baden, Indiana, was reduced to writing and executed in the State of Ohio, April 26, 1918, and among other things provided:

"It is understood and contemplated by the parties hereto that performance under this contract shall embrace services and travel in and through the several and various states of the U.S.A. and the Dominion of Canada, the extent thereof not being definitely ascertained. It is known and understood by the parties hereto that the laws of the said several states regarding the validity and interpretation of contracts with release of this nature lack uniformity, and that a few states have enacted Employers' Liability Acts. Now, therefore, acting in good faith and for the purpose of giving force and validity to this contract and release in all parts and at all times and places, it is mutually agreed between the parties hereto that the place of the contract and release, its status or forum, is the District of Columbia, or according to the laws thereof, if construed or litigated elsewhere, shall all matters whether sounding or in tort, relating to its validity, construction, and interpretation be determined to the same extent as if its execution, performance, or cause of action thereon or growing out of the same, actually took place or arose in said District of Columbia."

The contract did not stipulate the character of the services to be performed by Randall; but the services actually rendered by him, consisted in the operation and care of what was termed a "privilege car," in which he sold food and soft drinks; and in which, and for and on behalf of appellant, he conducted games of chance, and received for his services in conducting such games a per cent. of the rake-off, which was in addition to the wages paid him in accordance with the terms of his written agreement. On June 21, 1918, appellant show company gave an exhibition in the city of Michigan City, Indiana, and was planning to give an exhibition on the following day in the city of Hammond in said state; that at an early hour on June 22, 1918, while appellant's show and show train were being transported over the Michigan Central Railroad from the city of Michigan City to the city of Hammond, and while in Lake county, Indiana, and while Randall was "in the course of his employment under the lawful written contract," the "privilege car" occupied by him, together with many other cars of appellant's train of cars carrying appellant's show, was wrecked, causing bodily injuries to Randall, resulting in his death on June 26, 1918. From an award of the Industrial Board, appellant show company appeals. Appellant assigns as errors that the award is not sustained by sufficient evidence, and is contrary to law.

The chief contention of appellant is that the Industrial Board has no jurisdiction over the subject-matter of this controversy, for the reason that the contract of employment was made in the State of Ohio, and by the express terms of the contract the parties in good faith stipulated that the laws of the District of Columbia should govern the validity and construction of the contract.

As shown by the finding, appellant is not only an Indiana corporation, but at the time in question was an Indiana business. Its show required the operation of a train, one of the cars of which train was in charge of Randall. It was contemplated by the parties, when they executed the contract in Ohio, that some time during the season the show train would return to, and be operated in Indiana. Therefore, the important question for our consideration is: Can an Indiana corporation with its principal offices in this state, but which carries on its business not only in Indiana, but elsewhere, and which is not engaged in interstate commerce, make a contract with an employee in the State of Ohio to do work in many states, including Indiana, and by the terms of such contract relieve itself of all obligations under the Indiana Workmen's Compensation Act (Acts 1915, p. 392, § 80201 et seq. Burns' Supp. 1918) if such employe should be injured or killed in the State of Indiana, while at work pursuant to the terms of such contract?

By the Workmen's Compensation Act of 1915, the State of Indiana made sweeping changes in its laws relative to the rights and duties of the parties under an employment contract. A new public policy for the state was established; and it is a settled principle of the law that the public policy of a state is supreme, and when once established will not, as a rule, be relaxed even on the ground of comity to enforce contracts which, though valid where made, contravene such policy. Lake Shore, etc., R. Co. v. Teeters (1906), 166 Ind. 335, 77 N.E. 599, 5 L. R. A. (N. S.) 425; 5 R. C. L. 944, and cases there cited.

The Workmen's Compensation Act of this state (§§ 2, 3, 4, and 15, Acts 1915 p. 392, § 80201, supra) specifically provides that every employer in the state is presumed to have accepted the provisions of the act, and to have agreed to be bound thereby, unless such employer, thirty days before the accident resulting in injury or death, shall have given notice of exemption, and that no contract can operate to relieve any employer of any obligation created by the act. It is not contended...