In re Duncan
| Decision Date | 11 May 1920 |
| Docket Number | No. 10810.,10810. |
| Court | Indiana Appellate Court |
| Parties | In re DUNCAN. |
OPINION TEXT STARTS HERE
Claim by Frank Duncan for compensation under the Workmen's Compensation Act against the Grant Coal & Mining Company. On questions certified by the Industrial Board. Questions answered, and claimant held an employé.
The Industrial Board has certified the following statement of facts to this court:
The Grant Coal & Mining Company on July 11, 1919, and for many years prior thereto, was engaged in the business of mining, selling, and shipping coal from a mine in Vigo county, Ind., known as the Grant mine, and employed in its said business approximately 400 men. The coal in said mine cannot be mined easily or profitably with a pick without first being blasted. For the purpose of blasting the coal, holes are drilled into the face thereof. These holes are then charged with powder and tamped, with fuses extending from the charge back to the mouth of the hole. These fuses, being ignited burn up to the charge, when an explosion takes place and loosens the coal, so that it may be shoveled into cars. This work constitutes a necessary part of the mining of the coal. In practical mining the fuses may be lighted either by the miner loading the coal or by a shot firer selected for that purpose. In a mine like the Grant mine, where many miners are employed, it is safer both for the property of the mine owner and the persons of the miners to have the fuses lighted, or the shots fired, by a regular shot firer after the miners have left the mine.
July 11, 1919, and at all other times mentioned herein, the Grant mine was a union mine, that is, all the miners employed therein were members of “Local Union 953,” which was a constituent part of the United Mine Workers of America, District No. 11, and during all of said time the Grant Coal & Mining Company was a member of the Indiana Bituminous Coal Operators Association. May 19, 1916, the Indiana Bituminous Coal Operators Association and District No. 11, United Mine Workers of America, entered into a wage agreement, effective April 1, 1916, to March 31, 1918, and which was continued in force by the mutual agreement of said association and United Mine Workers for a period of two years from April 1, 1918. The Grant Coal & Mining Company and the miners employed therein were, on July 11, 1919, operating under said agreement. In said agreement a specific price per ton was fixed for mining coal, and it was stipulated in said agreement that-
“The price per ton for mining herein agreed to for pick and machine work, shall include all labor necessary to cut the coal, drill, blast the same, load it on the miner's car and properly care for and timber the miner's working place, and that no division of the scale shall carry any exception to this rule.”
An agreement or understanding was entered into between the Grant Coal & Mining Company, and the miners employed therein, whereby said miners were to select a person as shot firer to do the shooting or blasting for them. Pursuant to said agreement or understanding, said shot firer was to be selected by the miners employed therein, and was to be absolutely under their control and subject to their discharge and order. Pursuant to said arrangement, said Local Union No. 953, including the miners working in said Grant mine, selected Frank Duncan as the shot firer to fire the shots in said mine. On July 11, 1919, and for a long time prior thereto, said Duncan had been doing the shooting, firing, and blasting in said mine with the knowledge and consent of the Grant Coal & Mining Company. Under an arrangement between the miners employed in said mine and said Grant Coal & Mining Company, Frank Duncan was paid for his services as shot firer in said mine by and through a device by which the company separated the agreed per ton price for mining the coal, paying part of it directly to the miners, and an amount equal to the compensation of said Frank Duncan to the financial secretary of Local Union 953, to be paid by him to said Frank Duncan for his services as shot firer. The amount paid to the miners directly by the Grant Coal & Mining Company and the amount paid to said financial secretary equaled the per ton price for mining coal as agreed upon in the wage contract of May 19, 1916, and it required both of said amounts to equal the per ton price as specified in said contract. In other words, the Grant Coal & Mining Company did not pay to individual miners the full sum per ton fixed in said wage agreement, but paid to them a certain portion thereof, and to the financial secretary of Local Union 953 the remainder thereof to be by him paid to said Frank Duncan for his services as shot firer. The average weekly wages of said Duncan as shot firer was $24. On July 11, 1919, while engaged in firing shots in said mine, Frank Duncan received a personal injury by reason of an explosion arising out of and in the course of his said work, which resulted in such disability as will entitle him to an award of compensation against the Grant Coal & Mining Company at the rate of $13.20 per week if he in fact was at the time of such injury an employé of said company. He has filed a claim for compensation under the Workmen's Compensation Act. This claim is resisted by the Grant Coal & Mining Company upon the sole and only ground that at the time of receiving his injury he was not in its employ.
Upon the foregoing facts the Industrial Board by virtue of section 61 of the Workmen's Compensation Act (Laws 1915, c. 106) has submitted the following questions of law for our determination:
(1) Would a finding that Frank Duncan was an employé of the Grant Coal & Mining Company at the time of his injury be sustained by sufficient evidence?
(2) Would such a finding be according to law?
[1] The Workmen's Compensation Act sought the correction of recognized errors and abuses by introducing new regulations for the advancement of the public welfare. Being remedial in character, it should be construed with regard to former laws and the defects or evils to be corrected and the remedy provided. It should be liberally construed to the end that the purpose of the Legislature, by suppressing the mischiefs and advancing the remedy, be promoted, even to the inclusion of cases within the reason although outside the letter of the statute. 36 Cyc. 1175.
[2][3] Prior to the enactment of the Workmen's Compensation Act, the consequential and financial losses to workmen engaged in industrial activities were borne by the workmen themselves, by their dependents, or by the state at large. The Legislature by the passage of this act indicated its belief that this loss should be borne by the industries causing them, or more accurately by the consumers of the products of the industry causing the loss.
The Supreme Court of Ohio, in speaking upon this subject, said:
“The theory upon which the compensation law is based (which is now generally accepted) is that each time an employé is killed or injured there is an economic loss which must be made up or compensated in some way, that most accidents are attributable to the inherent risk of employment-that is, no one is directly at fault-that the burden of this economic loss should be borne by the industry rather than by society as a whole, that a fund should be provided by the industry from which a fixed sum should be set apart as every accident occurs to compensate the persons injured, or his dependents, for his or their loss.” State v. Industrial Com., 92 Ohio St. 434, 111 N. E. 299, L. R. A. 1916D, 944, Ann. Cas. 1917D, 1162.
See, also, McRoberts v. National Zinc Co., 93 Kan. 364, 144 Pac. 247;Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847;Lewis, etc., County v. Industrial Acc. Bd., 52 Mont. 6, 155 Pac. 268, L. R. A. 1916D, 628;Peet v. Mills, 76 Wash. 437, 136 Pac. 685, L. R. A. 1916A, 358, Ann. Cas. 1915D, 154.
The facts as certified by the board are almost identical with the facts in the case of Bidwell Coal Co. v. Davidson (Iowa) 174 N. W. 592. There, as here, the agreement was to pay a fixed price per ton for the coal mined. The miners had the right to select and discharge the shot firer. The mining company deducted from the per ton price a sum sufficient to pay the shot firer. It was there held that the shot firer was an employé of the mining company. The reasoning of the court in that case is so applicable to the facts now under consideration that we can do no better than to adopt the same. In discussing the question, the court said:
“This company was engaged in mining coal for the market. Its business was to get this coal out of the ground and upon the market. To this end it employed men to bring the coal from the ground that the company might place it upon the market. Every act in the mine in the way of getting this coal to the surface of the ground was done in the service of the company, and to effectuate the purpose for which the company was organized, and to make profitable to the company the work it had undertaken. The boring of these holes in the face of the mine, preparing the blast, and tamping the hole was all work done in furtherance of that purpose. The examining and the firing were all done with one end in view, to wit, to secure coal for the market. Had the miner who bored the whole charged it with powder and tamped it, lit the fuse to the blast, he would be clearly in the line of his employment, and clearly working as an employé in the service of the company. If he was injured or killed while so engaged, compensation should be made under the Workmen's Compensation Act. However, the company delegated to the miners the right to select one man to discharge this specific duty. This duty, when discharged, was discharged in the interests of the company. The agreement between the company and the miners was that the miners might designate or select a person to do this...
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